As filed with the Securities and Exchange Commission on September 1, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ABIOMED, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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04-2743260
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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22 Cherry Hill Drive, Danvers, MA
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01923
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(Address of Principal Executive Offices)
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(Zip Code)
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ABIOMED, INC. AMENDED AND RESTATED
2008 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Michael R. Minogue
Chief Executive Officer and President
ABIOMED, Inc.
22 Cherry Hill Drive
Danvers, Massachusetts 01923
(Name and Address of Agent For Service)
(978) 777-5410
(Telephone Number, Including Area Code, of Agent For Service)
with a copy
to:
Peter M. Rosenblum, Esq.
Foley Hoag LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
(617) 832-1000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of
Securities To Be Registered
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Amount
To Be
Registered
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.01 par value
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3,200,000 (1)
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$11.36 (2)
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$36,352,000
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$4,221
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(1)
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Represents shares of common stock issuable upon exercise or grant of the maximum number of stock options or other stock awards available for grant under the ABIOMED,
Inc. Amended and Restated 2008 Stock Incentive Plan.
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(2)
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Calculated pursuant to Rule 457(c) and (h)(1) under the Securities Act of 1933 based on the average of the high and low prices of the common stock as reported by the
Nasdaq Global Market on August 26, 2011.
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Explanatory Note
ABIOMED, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 (the “Registration Statement”) to
register an additional 3,200,000 shares of the Registrant’s common stock, par value $0.01 per share (“Common Stock”) issuable under the Registrant’s Amended and Restated 2008 Stock Incentive Plan. This Registration Statement is
submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities, and pursuant to such instruction, the contents of the Registration Statement on Form S-8, Reg. Nos. 333-152989 is incorporated herein by
reference.
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Exhibit
No.
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Description
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5.1
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Opinion of Foley Hoag LLP.
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23.1
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Consent of Deloitte & Touche LLP.
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23.2
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Consent of Foley Hoag LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (contained on signature page).
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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 Danvers, Massachusetts, on September 1, 2011.
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ABIOMED, INC.
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By:
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/s/ Robert L. Bowen
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Robert L. Bowen
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Chief Financial Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of ABIOMED, Inc., hereby severally constitute and appoint Michael R. Minogue and Robert
L. Bowen, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him or her and in his or her name, place and
stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement (or any other Registration Statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Michael R. Minogue
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Chief Executive Officer, President and Director (Principal Executive Officer)
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September 1, 2011
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Michael R. Minogue
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/s/ Robert L. Bowen
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Vice President and Chief Financial Officer (Principal Financial Officer, Principal Accounting
Officer)
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September 1, 2011
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Robert L. Bowen
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/s/ W. Gerald Austen
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Director
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September 1, 2011
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W. Gerald Austen
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/s/ Louis E. Lataif
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Director
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September 1, 2011
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Louis E. Lataif
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/s/ Dorothy E. Puhy
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Director
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September 1, 2011
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Dorothy E. Puhy
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/s/ Eric A. Rose
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Director
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September 1, 2011
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Eric A. Rose
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/s/ Martin P. Sutter
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Director
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September 1, 2011
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Martin P. Sutter
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/s/ Henri A. Termeer
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Director
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September 1, 2011
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Henri A. Termeer
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/s/ Paul Thomas
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Director
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September 1, 2011
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Paul Thomas
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Exhibit 5.1
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Seaport World Trade Center West
155 Seaport Boulevard
Boston, MA
02210-2600
617 832 1000
main
617 832 7000
fax
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September 1, 2011
By EDGAR
ABIOMED, Inc.
22 Cherry Hill Drive
Danvers, Massachusetts 01923
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Re:
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Amended and Restated 2008 Stock Incentive Plan
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We are familiar with the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by ABIOMED, Inc., a Delaware corporation (the “Company”), with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering by the Company of up to 3,200,000 shares (the “Shares”) of its common stock, $0.01 par
value, issuable under the ABIOMED, Inc. Amended and Restated 2008 Stock Incentive Plan (the “Plan”).
In arriving at
the opinion expressed below, we have examined and relied on the certificate of incorporation of the Company, as amended to date, the by-laws of the Company, as amended to date, the records of meetings and consents of the Board of Directors and
stockholders of the Company provided to us by the Company, the Registration Statement and the Plan.
In addition, we have
examined and relied on the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and other certificates of public officials, officers and representatives of
the Company and such other persons, and we have made such examination of law, as we have deemed appropriate as a basis for the opinion expressed below.
We assume that all Shares to be granted or issued upon exercise of options granted or to be granted or pursuant to other awards granted or to be granted pursuant to the Plan will be issued in accordance
with the applicable terms of the Plan and that the purchase price of the Shares, or the value of other consideration received or to be received by the Company for the Shares, will be valid consideration equal to or in excess of the par value
thereof.
Based upon and subject to the foregoing, it is our opinion that the Shares, when issued and delivered upon the
exercise of options or pursuant to other awards granted pursuant to the Plan and against the receipt of the purchase price or other consideration therefor, will be validly issued, fully paid and nonassessable.
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ATTORNEYS AT LAW
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BOSTON | WASHINGTON | EMERGING ENTERPRISE CENTER | FOLEYHOAG.COM
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ABIOMED, Inc.
September 1, 2011
Page 2
We express no opinion as to the laws of any state or jurisdiction other than the General
Corporation Law of the State of Delaware (including applicable provisions of the Delaware Constitution and reported judicial decisions interpreting such Law and such Constitution) and the federal laws of the United States of America.
This opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
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 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 reference to our firm under the caption, “Interests of Named Experts and Counsel.” In giving such consent, we do not 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.
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Very truly yours,
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FOLEY HOAG
LLP
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By:
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/s/ Mark A. Haddad
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a Partner
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