Registration No. 333-
Timothy M. Shannon
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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Pursuant to General
Instruction E to Form S-8, the prior Registration Statement relating to the Plan, Registration No. 333-147219 filed with the Commission
on November 7, 2007, remains effective, and the contents of such Registration Statement are incorporated in this Registration Statement
by this reference.
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Item 3.
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Incorporation of Documents by Reference
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The following documents
filed with the Commission are hereby incorporated by reference in this Registration Statement:
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(a)
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, as filed with the Commission on March 11, 2014;
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(b)
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The Registrant’s Current Reports on Form 8-K, as filed with the Commission on January 8, 2014, February 11, 2014, March 14, 2014, and April 17, 2014;
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(c)
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The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-33744) filed with the Commission on October 15, 2007 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.
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In addition, all documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the
date of filing of such documents. However, any documents or portions thereof, whether specifically listed above or filed in the
future, that are not deemed “filed” with the Commission, including without limitation any information furnished pursuant
to Item 2.02 or 7.01 of Form 8-K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K, shall not be deemed to be incorporated
by reference in this Registration Statement.
Any statement in a
document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes
of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 6.
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Indemnification of Directors and Officers.
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Section 145(a) of the Delaware General
Corporation Law, or the DGCL, provides that a Delaware corporation may indemnify any person who was or is, or is threatened to
be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer,
director, employee or agent of such corporation, or is or was serving at the request of the corporation as an officer, director,
employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s
best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person was or is a director,
officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise against expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and
in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall
deem proper. Section 145(c) of the DGCL provides that where an officer or director is successful on the merits or otherwise in
the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’
fees) which such officer or director has actually and reasonably incurred.
Our amended and restated certificate of
incorporation provides that to the fullest extent permitted by applicable law, we are authorized to provide indemnification of
(and advancement of expenses to) our directors, officers, employees and agents (and any other persons to whom Delaware law permits
us to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or
disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145
of the DGCL, subject only to limits created by applicable Delaware law (statutory or non-statutory), with respect to actions for
breach of duty to a corporation, its stockholders and others. Our amended and restated bylaws provide for the indemnification of
our directors and officers to the fullest extent permitted under the DGCL against all expense, liability and loss (including attorneys’
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such
director or officer. Our amended and restated bylaws also provide for the advancement of expenses incurred in defending any such
proceeding in advance of its final disposition, subject to any requirement of the DGCL regarding the delivery to us of an undertaking,
by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such director or officer is not entitled to be indemnified for such
expenses incurred.
We have also entered into an indemnification
agreement with each of our directors and certain of our executive officers providing for indemnification to the fullest extent
permitted by the DGCL.
Section 102(b)(7) of the DGCL permits
a corporation to include in its certificate of incorporation a provision to the effect that a director of the corporation shall
not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director,
except for liability for any (i) breach of a director’s duty of loyalty to the corporation or its stockholders, (ii) act
or omission not in good faith or that involves intentional misconduct or a knowing violation of law, (iii) unlawful payment
of dividends or redemption of shares, or (iv) transaction from which the director derives an improper personal benefit. Our
amended and restated certificate of incorporation includes such a provision.
Our amended and restated bylaws provide
that we may maintain insurance, at our expense, to protect us and any director, officer, employee or agent of ours or another corporation,
partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not we would have the
power to indemnify such person against such expense, liability or loss under the DGCL. We have an insurance policy covering our
directors and officers with respect to certain liabilities, including liabilities arising under the Securities Act, which might
be incurred by them in such capacities and against which they cannot be indemnified by us.
The indemnification provisions set forth
above and the indemnification agreements entered into between us and our directors and certain of our officers may be sufficiently
broad to permit indemnification of our directors and officers for liabilities (including reimbursement of expenses incurred) arising
under the Securities Act. The foregoing statements are subject to the detailed provisions of the DGCL and to the applicable provisions
of our amended and restated certificate of incorporation and amended and restated bylaws.
At present, there is no pending litigation
or proceeding involving any of our directors or executive officers as to which indemnification is required or permitted, and we
are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.
Exhibit No.
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Description
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5.1
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Opinion of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
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23.1
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Consent of PricewaterhouseCoopers LLP
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23.2
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Consent of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. (contained 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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99.1
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Amended and Restated Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed with the Commission on May 15, 2013)
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(a) 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;
(ii) To reflect in
the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% 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 the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the
purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
POWER OF ATTORNEY
We, the undersigned
directors and officers of Baxano Surgical, Inc., do hereby constitute and appoint Ken Reali and Timothy M. Shannon or either of
them, our true and lawful attorneys and agents, to do any and all acts and things in our name and behalf in our capacities as directors
and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorneys
and agents, or either of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of
1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically, but without limitation, power and authority to sign for us or any of us in our
names and in the capacities indicated below, any and all amendments (including post-effective amendments) to this Registration
Statement, and we do hereby ratify and confirm all that the said attorneys and agents, or either of them, shall do or cause to
be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities
and on the dates indicated.
Signature
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Title
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Date
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/s/ Ken Reali
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President, Chief Executive Officer and Director (Principal Executive Officer)
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May 2, 2014
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Ken Reali
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/s/ Timothy M. Shannon
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Chief Financial Officer (Principal Financial and Accounting Officer)
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May 2, 2014
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Timothy M. Shannon
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/s/ Jeffrey Fischgrund
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Director
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May 2, 2014
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Jeffrey Fischgrund
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/s/ Russell Hirsch
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Director
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May 2, 2014
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Russell Hirsch
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/s/ Paul LaViolette
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Chairman of the Board
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May 2, 2014
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Paul LaViolette
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/s/ James Shapiro
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Director
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May 2, 2014
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James Shapiro
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Director
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May __, 2014
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David Simpson
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Director
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May __, 2014
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Mark Stautberg
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/s/ Roderick Young
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Director
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May 2, 2014
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Roderick Young
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