As filed with the Securities and Exchange Commission on February 12, 2013
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.
SECOND AMENDED AND RESTATED 2008 STOCK INCENTIVE PLAN
1988 EMPLOYEE
STOCK PURCHASE 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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1,350,000 (1)(2)
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$13.38 (3)
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$18,063,000
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$2,464
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(1)
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Represents 1,000,000 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. Second Amended and Restated 2008 Stock Incentive Plan and 350,000 shares of common stock available for issuance under the ABIOMED, Inc. 1988 Employee Stock Purchase Plan.
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(2)
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plans described herein.
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(3)
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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 February 6, 2013.
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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 1,000,000 shares of the Registrant’s common stock, par value $0.01 per share (“Common Stock”) issuable under the Registrant’s Second 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 Statements on Form S-8, Reg. Nos. 333-152989 and
333-176620 are incorporated herein by reference.
The Registrant is also filing this Registration Statement to register an
additional 350,000 shares of Common Stock issuable under the Registrant’s 1988 Employee Stock Purchase Plan. Pursuant to General Instruction E to Form S-8 regarding registration of additional securities, the contents of the Registration
Statements on Form S-8, Reg. Nos. 33-23053 and 333-114066 are 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 February 12, 2013.
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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
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
Michael R. Minogue
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Chief Executive Officer, President and Director (Principal Executive Officer)
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February 12, 2013
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/s/ Robert L. Bowen
Robert L. Bowen
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Vice President and Chief Financial
Officer (Principal Financial Officer, Principal Accounting Officer)
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February 12, 2013
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/s/ W. Gerald Austen
W. Gerald Austen
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Director
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February 12, 2013
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/s/ Louis E. Lataif
Louis E. Lataif
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Director
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February 12, 2013
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/s/ Dorothy E. Puhy
Dorothy E. Puhy
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Director
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February 12, 2013
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/s/ Martin P. Sutter
Martin P. Sutter
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Director
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February 12, 2013
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/s/ Henri A. Termeer
Henri A. Termeer
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Director
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February 12, 2013
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/s/ Paul Thomas
Paul Thomas
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Director
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February 12, 2013
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Exhibit 5.1
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Seaport West
155 Seaport
Boulevard
Boston, MA 02210-2600
617 832 1000
main
617 832 7000
fax
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February 12, 2013
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 and 1988 Employee Stock Purchase Plan
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Ladies and Gentlemen:
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 1,350,000 shares (the “Shares”) of its common stock, $0.01 par value, 1,000,000 of which are issuable under the ABIOMED, Inc. Amended and Restated 2008 Stock
Incentive Plan (the “Stock Incentive Plan”) and 350,000 of which are issuable under the ABIOMED, Inc. 1988 Employee Stock Purchase Plan (together with the Stock Incentive Plan, the “Plans”).
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 Plans.
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.
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ATTORNEYS AT LAW
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BOSTON | WASHINGTON | EMERGING ENTERPRISE CENTER | FOLEYHOAG.COM
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February 12, 2013
Page 2
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 Plans will be issued in accordance with the applicable terms of the Plans 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.
We express no opinion as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
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 or to be granted pursuant to the Plans and against the receipt of the purchase price or other consideration therefor, will be validly issued, fully paid and nonassessable.
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.
This opinion is being delivered solely for the benefit of the Company and such other persons as are
entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion may not be used, quoted, relied upon or referred to for any other purpose nor may this opinion be used, quoted, relied upon or referred to by any
other person, for any purpose, without our prior written consent.
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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Sincerely,
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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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