As Filed
With the Securities and Exchange Commission on July 31, 2014
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER THE
SECURITIES ACT OF 1933
BAXANO
SURGICAL, INC.
(Exact name
of registrant as specified in its charter)
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Delaware
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33-0909022
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification No.)
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110 HORIZON
DRIVE, SUITE 230
RALEIGH,
NORTH CAROLINA 27615
(919) 800-0020
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Timothy
M. Shannon
Chief
Financial Officer
Baxano
Surgical, Inc.
110 Horizon
Drive, Suite 230
Raleigh,
North Carolina 27615
(919) 800-0020
(Name, address,
including zip code, and telephone number, including area code, of agent for service)
Copy
to:
Edward
A. King, Esq.
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
Approximate
date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only
securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box.
o
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.
þ
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.
¨
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.
o
If this
Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
o
If this
Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
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. (Check one):
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Large accelerated filer
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Accelerated filer
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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
þ
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CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered (1)
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Amount
to be
Registered(2)
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Proposed Maximum
Offering Price
Per Share
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Proposed Maximum
Aggregate
Offering Price(2)
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Amount
of
Registration Fee(3)
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Debt Securities
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$
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$
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$
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Common Stock, $0.0001 par value per share
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Preferred Stock, $0.0001 par value per share
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Warrants
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Total
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$
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26,276,158
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$
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$
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26,276,158
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$
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0.00
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(1)
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There are being registered hereunder such indeterminate amount or number of debt securities, shares of common stock, shares of preferred stock, and warrants to purchase any combination of the foregoing securities, as may from time to time be issued at indeterminate prices, with an aggregate initial offering price not to exceed $26,276,158. Securities registered hereunder may be sold separately, or in combination with other securities registered hereunder. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $26,276,158, less the aggregate dollar amount of all securities previously issued hereunder. This registration statement also registers an indeterminate amount of common stock, preferred stock, or debt securities as may be issued upon conversion of, or in exchange for, the securities registered hereunder, provided however, that the aggregate amount of securities registered hereunder shall not exceed the amount set forth in the fee table above. In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this registration statement registers such indeterminable number of shares as may be issued from time to time upon conversion or exchange as a result of stock splits, stock dividends or similar transactions.
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(2)
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Not specified as to each class of securities to be registered hereunder pursuant to General Instruction II.D. of Form S-3. The proposed maximum offering price of the securities will be determined from time to time by the Registrant in connection with, and at the time of, the issuance of the securities. In addition, pursuant to General Instruction I.B.6 of Form S-3, the securities offered and sold by the registrant under this registration statement during any period of twelve (12) months immediately prior to, and including, such sale may not exceed one-third of the aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant.
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(3)
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Estimated solely for the purpose of calculating the amount of the registration fee required pursuant to Rule 457(o) under the Securities Act of 1933, as amended, which permits the registration fee to be calculated on the basis of the maximum aggregate offering price of all securities listed. This Registration Statement is filed in accordance with Rule 415(a)(6) under the Securities Act of 1933 (the "Securities Act") and registers only securities that were previously registered and remain unsold. Pursuant to Rule 415(a)(6) under the Securities Act, this Registration Statement relates solely to $26,276,158
aggregate initial offering price of unsold securities registered by the registrant under Registration Statement No. 333-174255 filed on May 16, 2011, and declared effective on August 1, 2011, in connection with which a filing fee of $5,805 was paid for the registration of such securities. No additional securities are being registered hereunder and, in accordance with Rule 415(a)(6) under the Securities Act, no registration fee is due.
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The registrant hereby amends
this registration statement on such date or dates as may be necessary to delay its effective date until the registrant 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, as amended, or until the registration statement shall become effective on such
date as the Securities and Exchange Commission (“SEC”), acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
The Registrant has an existing
“shelf” registration statement on Form S-3, File No. 333-174255, that was declared effective on August 1, 2011 and
which expires on August 1, 2014 pursuant to Rule 415(a)(5) under the Securities Act (the “Existing Registration Statement”).
Of the $50,000,000 of the Registrant's securities registered pursuant to the Existing Registration Statement, $23,723,842 were
sold. The Registrant has filed this new Registration Statement in accordance with Rule 415(a)(6) under the Securities Act solely
for the purpose of continuing to provide the Registrant with the ability to sell from time to time the remaining $26,276,158 aggregate
initial offering price of unsold securities registered under the Existing Registration Statement. In accordance with SEC rules,
the Registrant may continue to offer and sell securities being registered hereunder during the grace period afforded by Rule 415(a)(5).
Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Existing Registration Statement will be
deemed terminated as of the effective date of this Registration Statement. If the Registrant sells any securities being registered
hereunder during the grace period, the Registrant will identify in a pre-effective amendment to this Registration Statement the
new amount of securities to be carried forward to this Registration Statement in reliance upon Rule 415(a)(6).
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The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
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SUBJECT
TO COMPLETION, DATED JULY 31, 2014
PROSPECTUS
$26,276,158
Debt Securities
Common Stock
Preferred Stock
Warrants
This prospectus
relates to the offer and sale, from time to time, by Baxano Surgical, Inc. of debt securities, shares of common stock, shares of
preferred stock, and warrants to purchase any of the foregoing securities, either separately or in any combination with other securities
offered hereunder, in one or more offerings. The debt securities, preferred stock and warrants may be convertible into or exercisable
or exchangeable for common stock, preferred stock or debt securities. We will specify in an accompanying prospectus supplement
more specific information about any such offering.
Our common
stock is listed on the NASDAQ Global Market under the symbol “BAXS.” The last reported sale price of our common stock
on July 25, 2014 was $0.5349 per share. The aggregate public offering price of all securities under this prospectus will not exceed
$26,276,158.
As of July
30, 2014, the aggregate market value of our voting and non-voting common equity held by non-affiliates was approximately $26.45
million, based on an aggregate of 49,459,088 shares of common stock outstanding, of which 40,689,733 shares were held by non-affiliates,
and a per share price of $0.65, the closing sale price of our common stock on the NASDAQ Global Market on June 24, 2014. We have
offered $3,573,842 of our securities pursuant to General Instruction I.B.6. of Form S-3 during the prior 12 calendar month period
that ends on and includes the date of this prospectus.
Our principal
executive offices are located at 110 Horizon Drive, Suite 230, Raleigh, North Carolina 27615 and our telephone number is (919)
800-0020.
You should
read this prospectus, any prospectus supplement and the documents incorporated by reference in this prospectus and any prospectus
supplement carefully before you invest.
Investing
in our common stock involves risk. See the section entitled “Risk Factors” beginning on page 4 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date
of this prospectus is , 2014.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus
is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or the Commission, under
the Securities Act of 1933, as amended, or the Securities Act, using a “shelf” registration offering process. We have
an existing “shelf” registration statement on Form S-3, File No. 333-174255, that was declared effective on August
1, 2011 and which expires on August 1, 2014 pursuant to Rule 415(a)(5) under the Securities Act (the “Existing Registration
Statement”). Under this shelf registration process, we have filed this new Registration Statement in accordance with Rule
415(a)(6) solely for the purpose of continuing to provide us with the ability to sell from time to time any combination of debt
securities, shares of common stock, shares of preferred stock, and warrants to purchase any of the foregoing securities, either
separately or in combination with other securities offered hereunder, in one or more offerings, for an aggregate dollar amount
of up to $26,276,158, which represents the amount of unsold securities registered under the Existing Registration Statement. This
prospectus provides you with a general description of the securities we may offer. Each time we offer securities, we will provide
you with a prospectus supplement that will describe the specific amounts, prices and terms of the offered securities. The prospectus
supplement may also add, update or change information contained in this prospectus. This prospectus, together with applicable prospectus
supplements and the documents incorporated by reference in this prospectus and any prospectus supplement, includes all material
information relating to this offering. Under this shelf process, we may, from time to time, sell the securities described in this
prospectus in one or more offerings. Please read carefully both this prospectus and any prospectus supplement together with additional
information described below under the sections entitled “Where You Can Find Additional Information” and “Incorporation
of Certain Information by Reference,” before investing in any of our securities.
You should
rely only on the information contained in or incorporated by reference into this prospectus and any prospectus supplement. We have
not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent
information, you should not rely on it. This prospectus is not an offer to sell these securities and it is not soliciting an offer
to buy these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information
contained in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front cover of
such prospectus or prospectus supplement, or that the information contained in any document incorporated by reference is accurate
as of any date other than the filing date of the document incorporated by reference, regardless of the time of delivery of this
prospectus and any prospectus supplement or any sale of a security.
As used in
this prospectus, references to “we,” “our,” “us,” “our company” and “Baxano
Surgical” refer to Baxano Surgical, Inc., unless the context requires otherwise.
FORWARD-LOOKING
STATEMENTS
In addition
to historical information, this prospectus and the documents incorporated by reference in this prospectus contain forward-looking
statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934,
as amended, or the Exchange Act, that concern matters that involve risks and uncertainties that could cause actual results to differ
materially from those projected in the forward-looking statements. These forward-looking statements are intended to qualify for
the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. All statements other than statements
of historical fact included or incorporated by reference in this prospectus, including statements regarding future events, our
future financial performance, our future business strategy and the plans and objectives of management for future operations, are
forward-looking statements. We have attempted to identify forward-looking statements by terminology including “anticipates,”
“believes,” “can,” “continue,” “could,” “estimates,” “expects,”
“intends,” “may,” “plans,” “potential,” “predicts,” “should”
or “will” or the negative of these terms or other comparable terminology. Although we do not make forward-looking statements
unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. Such forward-looking statements
are subject to risks, uncertainties and other factors that could cause actual results and the timing of certain events to differ
materially from future results expressed or implied by such forward-looking statements. Actual results could differ materially
from those projected in forward-looking statements as a result of the following factors, among others:
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acceptance and continued use of our products by surgeons;
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the lack of clinical data about the efficacy of our products;
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uncertainty of reimbursement from third-party payors;
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our historical lack of profitability;
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cost pressures in the healthcare industry;
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competitive pressures from substitute products and larger companies;
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our dependence on key employees, regulatory approval and market acceptance for new products;
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our reliance on a limited number of suppliers to provide our products;
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our ability to effectively manage a sales force to meet our objectives; and
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our ability to conduct successful clinical studies.
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Such risks,
uncertainties, and other factors that may cause such differences also include, but are not limited to, those disclosed under the
caption “Risk Factors” in this prospectus and in the documents we have incorporated by reference into this prospectus.
Readers are urged to carefully review and consider the various disclosures made by us, which attempt to advise interested parties
of the risks, uncertainties, and other factors that may affect our business, operating results and financial condition, and the
value of our common stock and other securities, including without limitation the disclosures made under the caption “Risk
Factors” in this prospectus, any prospectus supplement and in the documents we have incorporated by reference into this prospectus
or any prospectus supplement, for a discussion of other important factors that may cause our actual results to differ materially
from those expressed or implied by our forward-looking statements. As a result of these factors, we cannot assure you that the
forward-looking statements in this prospectus or any prospectus supplement will prove to be accurate. Furthermore, if our forward-looking
statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking
statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve
our objectives and plans in any specified time frame, or at all.
Our forward-looking
statements speak only as of the date they are made. We expressly disclaim any intent or obligation to update any forward-looking
statements to conform such statements to actual results or to changes in our opinions or expectations, except as required by applicable
law or the rules of The NASDAQ Stock Market.
SUMMARY
This summary
is not complete and does not contain all of the information you should consider before investing in the securities offered by this
prospectus. You should read this summary together with the entire prospectus, including our financial statements, the notes to
those financial statements, and the other documents identified under the headings “Where You Can Find More Information”
and “Incorporation of Certain Information by Reference” in this prospectus, before making an investment decision. See
the section entitled “Risk Factors” beginning on page 4 of this prospectus and in the documents we incorporate by reference
in this prospectus for a discussion of the risks involved in investing in our securities.
Our Business
We are a
medical device company focused on designing, developing and marketing minimally invasive products to treat degenerative conditions
of the spine affecting the lumbar region. We are passionately committed to delivering innovative technologies to our surgeon customers
that benefit their patients. We currently market the AxiaLIF® pre-sacral access and interbody fusion system for single and
two level lower lumbar fusion, the VEO® lateral access and interbody fusion system, the iO-Flex® set of flexible instruments
used by surgeons during spinal decompression procedures, the iO-Tome® instrument, which rapidly and precisely removes bone,
specifically the facet joints, a technique which is commonly performed in spinal fusion procedures, and Avance
TM
, an
MIS pedicle screw system used in lumbar spinal fusion procedures. We currently sell our products through a direct sales force,
independent sales agents and distributors.
Our family
of AxiaLIF products, commercially launched between 2004 and 2010, use the pre-sacral approach. This technique allows a surgeon
to access the discs in the lower lumbar region through an incision adjacent to the tailbone. In this manner, an interbody fusion
procedure can be accomplished through a single tissue plane, which minimizes damage to surrounding tissues. Traditional methods
of accessing the lower lumbar spine for fusion either involve cutting ligament and bone if approaching from the back, or navigating
around important organs and blood vessels if approaching from the front. Our VEO lateral access and interbody fusion system, commercially
launched in 2011, provides for direct visualization of the psoas muscle and unrestricted lateral fluoroscopic views, which we believe
has allowed us to increase our market share in the highly competitive lateral fusion segment. We believe that direct visualization
allows a surgeon to identify and avoid the nerves running through this muscle that, when damaged, can cause numbness and pain in
the leg and groin post spinal surgery. Our iO-Flex instruments, commercially launched in 2009, were developed to allow surgeons
to perform a direct decompression while sparing the facet joints and posterior midline structures. Our iO-Flex minimally invasive
set of flexible instruments allow surgeons to target lumbar stenosis of the spine with minimal disruption to the patient’s
healthy anatomy critical for maintaining spinal stability. With traditional rigid instrumentation, surgeons have to remove bone
that helps stabilize the spine in order to get to the area of the bone that is impinging on the exiting nerve roots. Our iO-Tome
disposable instrument, commercially launched in the fourth quarter of 2013, allows surgeons to perform rapid facetectomies while
working above the exiting nerves. The iO-Tome instrument utilizes the iO-Flex instrument platform to rapidly and precisely remove
the facet joint, which is commonly performed in spinal fusion applications. Our Avance MIS pedicle screw system, which will be
in limited market release in the second and third quarter of 2014 and is planned for full launch in the fourth quarter of 2014,
may be used as an adjunct to fusion in numerous degenerative and complex spinal pathologies. Its innovative design provides a quick
and easy-to-use, percutaneous pedicle screw system that addresses single, complex and multi-level spinal pathologies with minimal
tissue disruption and trauma.
We also market
other products that complement these primary offerings, including our Vectre™ facet screw system, Bi-Ostetic™ bone
void filler, bowel retractors, discectomy tools, and a bone graft harvesting system that can be used to extract bone graft from
the patient’s hip for use in fusion procedures. We also have a TLIF system under development, with a limited market launch
expected in the fourth quarter of 2014. The new TLIF system will be used in conjunction with the iO-Tome instrument to provide
a less invasive means of performing a TLIF procedure. Our philosophy of continuous improvement is driven by ongoing research and
development investment in our core technologies. We support this investment by diligently expanding, maintaining, and protecting
our significant patent portfolio.
Corporate Information
We were incorporated
in Delaware in May 2000 under the name “aXiaMed, Inc.” and changed our name to “TranS1 Inc.” in February 2003.
In connection with our merger with Baxano, Inc. in May 2013, we changed our name to “Baxano Surgical, Inc.” Our principal
executive office is located at 110 Horizon Drive, Suite 230, Raleigh, North Carolina 27615 and our telephone number is (919) 800-0020.
Our website is
www.baxanosurgical.com.
The information on, or that can be accessed through, our website is not incorporated
by reference into this prospectus and should not be considered to be a part of this prospectus.
RISK FACTORS
An investment
in our securities involves a high degree of risk. In addition to the other information included in this prospectus, you should
carefully consider the risks described under the caption “Risk Factors” in any prospectus supplement and documents
incorporated by reference into this prospectus, including our most recent Annual Report on Form 10-K and subsequent Quarterly Reports
on Form 10-Q, before making an investment decision. If any of those risks actually occur, our business, financial condition, operating
results and prospects could suffer. In any such case, the trading price of our common stock or the value of our securities could
decline, and you might lose all or part of your investment in our securities. The risks and uncertainties not presently known to
us or that we currently deem immaterial may also materially harm our business, operating results and financial condition and could
result in a complete loss of your investment.
USE OF
PROCEEDS
Unless otherwise
indicated in any accompanying prospectus supplement, we expect to use the net proceeds from the sale of the offered securities
to support sales, for marketing and general administrative activities, for research and product development activities, for clinical
trials, for obtaining necessary regulatory approvals, for capital equipment, and to fund working capital and other general corporate
purposes. While we have no present understandings, commitments or agreements to enter into any potential acquisitions, we may also
use a portion of the net proceeds for the acquisition of, or investment in, technologies, products or assets that complement our
business. Accordingly, management will retain broad discretion as to the allocation of the net proceeds of this offering.
The amount
and timing of our use of proceeds will depend on several factors, including the extent and timing of cash collections of revenue
and the amount of net cash used by our operations, the acceptance and continued use of our products by surgeons, the continued
progress of our reimbursement efforts, and, the status of our research and development projects. In keeping with our current policy
with respect to the investment of our cash and cash equivalents, and subject to the uses discussed above, we plan to invest the
net proceeds of this offering in money market treasury funds and short-term investments primarily in U.S. agency-backed debt instruments.
DESCRIPTION
OF CAPITAL STOCK
Our authorized
capital stock consists of 150,000,000 shares of common stock, par value $0.0001 per share, and 5,000,000 shares of preferred stock,
par value $0.0001 per share.
The following
is a summary of the rights of our common stock and preferred stock. This summary is not complete. For more detailed information,
please see our amended and restated certificate of incorporation and amended and restated bylaws, which have been previously filed
with the Securities and Exchange Commission.
Common Stock
As
of July 30, 2014, there were 49,459,088
shares of common stock
outstanding. The following summarizes the rights of holders of our common stock:
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each holder of common stock is entitled to one vote per share on all
matters to be voted upon by the stockholders, including the election of directors;
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the affirmative vote of a majority of the shares present in person
or represented and voting at a duly held meeting at which a quorum is present shall be the act of the stockholders;
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holders of common stock are not entitled to cumulate votes in the
election of directors, which means that the holders of a majority of the shares voted can elect all of the directors then standing
for election;
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subject to preferences that may be applicable to the holders of outstanding
shares of preferred stock, if any, the holders of common stock are entitled to receive dividends when, as and if declared by our
board of directors, or the Board, out of assets legally available for dividends;
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upon our liquidation, dissolution or winding up, after satisfaction
of all our liabilities and the payment of any liquidation preference of any outstanding preferred stock, the holders of shares
of common stock will be entitled to receive on a pro rata basis all of our assets remaining for distribution;
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there are no redemption or sinking fund provisions applicable to our
common stock; and
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there are no preemptive or conversion rights applicable to our common
stock.
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Nasdaq
Global Market Listing.
Our common stock is listed on the NASDAQ Global Market under the symbol “BAXS.” The last
reported sale price of our common stock on July 25, 2014 was $0.5349 per share.
Transfer
Agent and Registrar
. The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company,
LLC. The transfer agent and registrar’s address is 10150 Mallard Creek Road, Suite 307, Charlotte, North Carolina 28262.
Preferred Stock
As of July 30,
2014, we had no shares of preferred stock outstanding. Under our amended and restated certificate of incorporation, the Board is
authorized to issue up to the 5,000,000 shares of preferred stock. Our amended and restated certificate of incorporation authorizes
the Board to, without further action by the stockholders, create and issue one or more series of preferred stock and to fix the
rights, preferences and privileges thereof. Among other rights, the Board may determine, without further vote or action by our
stockholders:
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the number of shares constituting that series and the distinctive
designation of that series;
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the dividend rate, if any, on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends
on shares of that series;
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whether that series shall have voting rights, in addition to the voting
rights provided by law, and if so, the terms of such voting rights;
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whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including the securities into which the preferred stock coverts and provision for
adjustment of the conversion rate in such events as the Board shall determine;
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whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or date upon or after which they shall be redeemable, and
the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption
dates;
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whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such sinking fund;
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the rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of Baxano, and the relative rights of priority, if any, of payment of shares
of that series; and
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any other relative rights, preferences and limitations of that series.
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The issuance
of preferred stock with voting or conversion rights could adversely affect the voting power or other rights of the holders of the
common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate
purposes, could, among other things, have the effect of delaying, deferring or preventing a change in control of Baxano and may
adversely affect the value of our common stock or other securities.
Anti-Takeover Effects of Certain
Provisions of Delaware Law and Our Certificate of Incorporation and Bylaws
Application
of Interested Stockholder Provisions of Delaware Law
. We are subject to the provisions of Section 203 of the DGCL. In
general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination”
with an “interested stockholder” for a period of three years after the date of the transaction in which the person
became an interested stockholder, unless either:
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prior to the date at which the person becomes an interested stockholder,
the Board approves such transaction or business combination;
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the stockholder acquires more than 85% of the outstanding voting stock
of the corporation (excluding shares held by directors who are officers or held in certain employee stock plans) upon consummation
of such transaction; or
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the business combination is approved by the Board and by the holders
of two-thirds of the outstanding voting stock of the corporation (excluding shares held by the interested stockholder) at a meeting
of stockholders (and not by written consent).
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For purposes
of Section 203, “interested stockholder” is a person who, together with affiliates and associates, owns (or within
three years prior, did own) 15% or more of the corporation’s voting stock. A “business combination” includes
a merger, asset sale or other transaction resulting in a financial benefit to such interested stockholder.
In addition,
certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws may be deemed to have
an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that a stockholder might consider in
its best interest, including those attempts that might result in a premium over the market price for the shares held by our stockholders.
Our amended and restated certificate of incorporation provides for our Board to be divided into three classes, with staggered three-year
terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing
for the remainder of their respective three-year terms. Because our stockholders do not have cumulative voting rights, our stockholders
representing a majority of the shares of common stock outstanding will be able to elect all of our directors. Our amended and restated
certificate of incorporation also permits our Board to issue up to 5,000,000 shares of preferred stock, with any rights, preferences,
and privileges as they may designate. Furthermore, our amended and restated certificate of incorporation and bylaws provide that
all stockholder action must be effected at a duly called meeting of stockholders and not by a consent in writing, and that only
our Board, chairman of the Board and chief executive officer may call a special meeting of stockholders. In addition, our amended
and restated certificate of incorporation and bylaws require advance notice for stockholders to nominate directors or to submit
proposals for consideration at meetings of stockholders. Our amended and restated certificate of incorporation and bylaws also
require a 66
2/3
% stockholder vote and the approval of our Board for the amendment, repeal or modification of certain
provisions of our amended and restated certificate of incorporation and bylaws relating to the issuance of preferred stock, the
absence of cumulative voting, the classification of our Board, the requirement that stockholder actions be effected at a duly called
meeting, the requirement of advance notice for stockholders to nominate directors, to submit proposals for consideration at meetings
of stockholders and the designated parties entitled to call a special meeting of the stockholders.
The combination
of the classification of our Board, the lack of cumulative voting, the authorization to issue “blank check” preferred
stock and the 66
2/3
% stockholder voting requirements will make it more difficult for our existing stockholders to replace
our Board as well as for another party to obtain control of us by replacing our Board. Since our Board has the power to retain
and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect
a change in management. In addition, the authorization of undesignated preferred stock makes it possible for our Board to issue
preferred stock with voting or other rights or preferences that could impede the success of any attempt to change our control.
These provisions
may have the effect of deterring hostile takeovers or delaying changes in our control or management. These provisions are intended
to enhance the likelihood of continued stability in the composition of our Board and in the policies they implement, and to discourage
certain types of transactions that may involve an actual or threatened change of our control. These provisions are designed to
reduce our vulnerability to an unsolicited acquisition proposal. The provisions also are intended to discourage certain tactics
that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making tender offers
for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our shares that could result from
actual or rumored takeover attempts. Such provisions may also have the effect of preventing changes in our management.
DESCRIPTION
OF DEBT SECURITIES
This prospectus
contains a summary of the general terms of the debt securities we may offer pursuant to a prospectus supplement. When we offer
to sell a particular series of debt securities, we will provide the specific terms of the series in a prospectus supplement. Accordingly,
for a description of the terms of any series of debt securities, you must refer to the prospectus supplement relating to that series
and the description of the debt securities in this prospectus. To the extent the information contained in the prospectus supplement
differs from this summary description, you should rely on the information in the prospectus supplement.
The debt
securities that may be offered by this prospectus will be issued under an indenture between us and the trustee, for one or more
series of debt securities designated in the applicable prospectus supplement. The indenture is subject to, and governed by, the
Trust Indenture Act of 1939, as amended. We incorporate by reference the form of indenture as an exhibit to the registration statement
of which this prospectus forms a part and you should read the indenture carefully for the provisions that may be important to you.
We have summarized selected portions of the indenture below. The summary is not complete. Terms used in the summary and not defined
in this prospectus have the meanings specified in the indenture.
General
We may offer
under this prospectus up to $26,276,158 in aggregate principal amount of secured or unsecured debt securities, or if debt securities
are issued at a discount, or in a foreign currency or composite currency, such principal amount as may be sold for an initial public
offering price of up to $26,276,158. The debt securities may be senior debt securities, senior subordinated debt securities or
subordinated debt securities.
We can issue
an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities,
at par, at a premium or at a discount. The terms of each series of debt securities will be established by or pursuant to a resolution
of the Board and detailed or determined in the manner provided in a Board resolution, an officers’ certificate or by a supplemental
indenture.
We will set
forth in a prospectus supplement relating to any series of debt securities being offered, the initial offering price, the aggregate
principal amount and the following terms of the debt securities:
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the title of the debt securities;
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the price or prices (expressed as a percentage of the aggregate principal
amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which we will pay the principal on the debt securities;
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the rate or rates (which may be fixed or variable) per annum or the
method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index)
at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which
interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
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the place or places where the principal of, premium and interest on
the debt securities will be payable;
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the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant
to any sinking fund or analogous provisions or at the option of a holder of debt securities;
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the dates on which and the price or prices at which we will repurchase
the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase
obligations;
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the denominations in which the debt securities will be issued, if
other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated
debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities;
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the designation of the currency, currencies or currency units in which
payment of principal of and interest on the debt securities will be made;
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if payments of principal of, premium or interest on the debt securities
will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated,
the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, premium
or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency
or currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index;
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any provisions relating to any security provided for the debt securities;
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any subordination provisions relating to the debt securities;
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any addition to or change in the events of default described in this
prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this
prospectus or in the indenture with respect to the debt securities;
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any addition to or change in the covenants described in this prospectus
or in the indenture with respect to the debt securities;
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any other terms of the debt securities, which may modify or delete
any provision of the indenture as it applies to that series; and
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any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt securities.
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We may issue
debt securities that are exchangeable and/or convertible into shares of our common stock or preferred stock. The terms, if any,
on which the debt securities may be exchanged for and/or converted will be set forth in the applicable prospectus supplement. Such
terms may include provisions for conversion, either mandatory, at the option of the holder or at our option, in which case the
number of shares of common stock or other securities to be received by the holders of debt securities would be calculated as of
a time and in the manner stated in the prospectus supplement.
We may issue
debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration
of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations
and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate
the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if
the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or
a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations,
specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign
currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt
security will be represented by either one or more global securities registered in the name of The Depository Trust Company, as
depositary, or a nominee of the depositary (we will refer to any debt security represented by a global debt security as a book-entry
debt security), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated
security as a certificated debt security), as described in the applicable prospectus supplement. Except as described under “Global
Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated
Debt Securities
. You may transfer or exchange certificated debt securities at the trustee’s office or paying agencies
in accordance with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt
securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection
with a transfer or exchange.
You may transfer
certificated debt securities and the right to receive the principal of, premium and interest on, certificated debt securities only
by surrendering the old certificate representing those certificated debt securities and either we or the trustee will reissue the
old certificate to the new holder or we or the trustee will issue a new certificate to the new holder.
Global
Debt Securities and Book-Entry System
. Each global debt security representing book-entry debt securities will be deposited
with, or on behalf of, the depositary, and registered in the name of the depositary or a nominee of the depositary.
We will require
the depositary to agree to follow the following procedures with respect to book-entry debt securities.
Ownership
of beneficial interests in book-entry debt securities will be limited to persons that have accounts with the depositary for the
related global debt security, whom we refer to as participants, or persons that may hold interests through participants. Upon the
issuance of a global debt security, the depositary will credit, on its book-entry registration and transfer system, the participants’
accounts with the respective principal amounts of the book-entry debt securities represented by the global debt security beneficially
owned by such participants. The accounts to be credited will be designated by any dealers, underwriters or agents participating
in the distribution of the book-entry debt securities. Ownership of book-entry debt securities will be shown on, and the transfer
of the ownership interests will be effected only through, records maintained by the depositary for the related global debt security
(with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through
participants). The laws of some states may require that certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to own, transfer or pledge beneficial interests in book-entry debt securities.
So long as
the depositary for a global debt security, or its nominee, is the registered owner of that global debt security, the depositary
or its nominee, as the case may be, will be considered the sole owner or holder of the book-entry debt securities represented by
such global debt security for all purposes under the indenture. Except as described herein, beneficial owners of book-entry debt
securities will not be entitled to have securities registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing securities and will not be considered the owners or holders of those
securities under the indenture. Accordingly, to exercise any rights of a holder under the indenture, each person beneficially owning
book-entry debt securities must rely on the procedures of the depositary for the related global debt security and, if that person
is not a participant, on the procedures of the participant through which that person owns its interest.
We will make
payments of principal of, and premium and interest on, book-entry debt securities to the depositary or its nominee, as the case
may be, as the registered holder of the related global debt security. We, the trustee and any other agent of ours or agent of the
trustee will not have any responsibility or liability for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
We expect
that the depositary, upon receipt of any payment of principal of, premium or interest on, a global debt security, will immediately
credit participants’ accounts with payments in amounts proportionate to the respective amounts of book-entry debt securities
held by each participant as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial
interests in book-entry debt securities held through those participants will be governed by standing customer instructions and
customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in
“street name,” and will be the responsibility of those participants.
We will issue
certificated debt securities in exchange for each global debt security if the depositary is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered
as a clearing agency under the Exchange Act is not appointed by us within 90 days. In addition, we may at any time and in
our sole discretion determine not to have any of the book-entry debt securities of any series represented by one or more global
debt securities and, in that event, we will issue certificated debt securities in exchange for the global debt securities of that
series. Global debt securities will also be exchangeable by the holders for certificated debt securities if an event of default
with respect to the book-entry debt securities represented by those global debt securities has occurred and is continuing. Any
certificated debt securities issued in exchange for a global debt security will be registered in such name or names as the depositary
shall instruct the trustee. We expect that such instructions will be based upon directions received by the depositary from participants
with respect to ownership of book-entry debt securities relating to such global debt security.
We have obtained
the foregoing information in this section concerning the depositary and the depositary’s book-entry system from sources we
believe to be reliable. We take no responsibility for the depositary’s performance of its obligations under the rules and
regulations governing its operations.
No Protection in the Event
of a Change in Control
Unless we
provide otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford
holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction
(whether or not such transaction results in a change in control) that could adversely affect holders of debt securities.
Covenants
We will describe
in the applicable prospectus supplement any restrictive covenants applicable to an issue of debt securities.
Consolidation, Merger and
Sale of Assets
We may not
consolidate with or merge into, or convey, transfer or lease all or substantially all of our properties and assets to, any person,
such person to be referred to as a “successor person”, and we may not permit any person to merge into, or convey, transfer
or lease its properties and assets substantially as an entirety to us, unless:
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the successor person is a corporation, partnership, trust or other
entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on
the debt securities and under the indenture;
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immediately after giving effect to the transaction, no event of default,
and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and be continuing
under the indenture; and
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certain other conditions are met.
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Events of Default
“Event
of default” means, with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that
series when it becomes due and payable, and continuance of that default for a period of 30 days (unless the entire amount
of such payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of or premium on any debt security
of that series when due and payable;
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default in the deposit of any sinking fund payment, when and as due
in respect of any debt security of that series;
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default in the performance or breach of any other covenant or warranty
by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series
of debt securities
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other than that series), which default continues uncured for a period
of 60 days after we receive written notice from the trustee or we and the trustee receive written notice from the holders
of at least a majority in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain events of our bankruptcy, insolvency or reorganization; and
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any other event of default provided with respect to debt securities
of that series that is described in the applicable prospectus supplement accompanying this prospectus.
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No event
of default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization)
necessarily constitutes an event of default with respect to any other series of debt securities. An event of default may also be
an event of default under our bank credit agreements or other debt securities in existence from time to time and under certain
guaranties by us of any subsidiary indebtedness. In addition, certain events of default or an acceleration under the indenture
may also be an event of default under some of our other indebtedness outstanding from time to time.
If an event
of default with respect to debt securities of any series at the time outstanding occurs and is continuing (other than certain events
of our bankruptcy, insolvency or reorganization), then the trustee or the holders of not less than a majority in principal amount
of the outstanding debt securities of that series may, by written notice to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal (or, if the debt securities of that series are discount securities, that portion
of the principal amount as may be specified in the terms of that series) of and accrued and unpaid interest, if any, of all debt
securities of that series. In the case of an event of default resulting from certain events of bankruptcy, insolvency or reorganization,
the principal (or such specified amount) of and accrued and unpaid interest, if any, of all outstanding debt securities will become
and be immediately due and payable without any declaration or other act by the trustee or any holder of outstanding debt securities.
At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before the trustee
has obtained a judgment or decree for payment of the money due, the holders of a majority in principal amount of the outstanding
debt securities of that series may, subject to our having paid or deposited with the trustee a sum sufficient to pay overdue interest
and principal which has become due other than by acceleration and certain other conditions, rescind and annul such acceleration
if all events of default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities
of that series, have been cured or waived as provided in the indenture. For information as to waiver of defaults see the discussion
under “Modification and Waiver” below. We refer you to the applicable prospectus supplement relating to any series
of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal
amount of the discount securities upon the occurrence of an event of default and the continuation of an event of default.
The indenture
provides that the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request
of any holder of outstanding debt securities, unless the trustee receives indemnity satisfactory to it against any loss, liability
or expense. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities
of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder
of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the
indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of
a continuing event of default with respect to debt securities of that series; and
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the holders of at least a majority in principal amount of the outstanding
debt securities of that series have made written request, and offered reasonable indemnity, to the trustee to institute such proceeding
as trustee, and the trustee shall not have received from the holders of a majority in principal amount of the outstanding debt
securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days.
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Notwithstanding
the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal
of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit
for the enforcement of payment.
The indenture
requires us, within 90 days after the end of our fiscal year, to furnish to the trustee a certificate as to compliance with
the indenture. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any
default or event of default (except in payment on any debt securities of that series) with respect to debt securities of that series
if it in good faith determines that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We and the
trustee may modify and amend the indenture with the consent of the holders of the outstanding debt securities of each series affected
by the modifications or amendments. However, we and the trustee may not make any modification or amendment without the consent
of the holder of each affected debt security then outstanding if that amendment will:
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change the amount of debt securities whose holders must consent to
an amendment or waiver;
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reduce the rate of or extend the time for payment of interest (including
default interest) on any debt security;
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reduce the principal of or premium on or change the fixed maturity
of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation
with respect to any series of debt securities;
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reduce the principal amount of discount securities payable upon acceleration
of maturity;
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waive a default in the payment of the principal of, premium or interest
on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority
in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted
from that acceleration);
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make the principal of or premium or interest on any debt security
payable in currency other than that stated in the debt security;
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make any change to certain provisions of the indenture relating to,
among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those
debt securities or the right of holders to waive past defaults or to amend the limitations described in this bullet point; or
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waive a redemption payment with respect to any debt security or change
any of the provisions with respect to the redemption of any debt securities.
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Except for
certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any
series may, on behalf of the holders of all debt securities of that series, waive our compliance with provisions of the indenture.
The holders of a majority in principal amount of the outstanding debt securities of any series may, on behalf of the holders of
all the debt securities of that series, waive any past default under the indenture with respect to that series and its consequences,
except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however,
that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration
and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities
and Certain Covenants in Certain Circumstances
Legal
Defeasance
. The indenture provides that, unless the terms of the applicable series of debt securities provide otherwise, we
may be discharged from any and all obligations in respect of the debt securities of any series (except for certain obligations
to register the transfer or exchange of debt securities of the series, to replace stolen, lost or mutilated debt securities of
the series, and to maintain paying agencies and certain provisions relating to the treatment of funds held by paying agents). We
will be so discharged upon the deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case
of debt securities denominated in a single currency other than U.S. dollars, foreign government obligations (as described at the
end of this section), that, through the payment of interest and principal in accordance with their terms, will provide money in
an amount sufficient in the opinion of a nationally recognized firm of independent public accountants to pay and discharge each
installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of
that series on the stated maturity of such payments in accordance with the terms of the indenture and those debt securities.
This discharge
may occur only if, among other things, we have delivered to the trustee an officers’ certificate and an opinion of counsel
stating that we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date
of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect
that holders of the debt securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amount and in the
same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance
of Certain Covenants
. The indenture provides that, unless the terms of the applicable series of debt securities provide otherwise,
upon compliance with certain conditions, we may omit to comply with the restrictive covenants contained in the indenture, as well
as any additional covenants contained in a supplement to the indenture, a Board resolution or an officers’ certificate delivered
pursuant to the indenture. The conditions include:
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depositing with the trustee money and/or U.S. government obligations
or, in the case of debt securities denominated in a single currency other than U.S. dollars, foreign government obligations, that,
through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the
opinion of a nationally recognized firm of independent public accountants to pay principal, premium and interest on and any mandatory
sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with
the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect that
the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax in the same amount and
in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred.
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Covenant
Defeasance and Events of Default
. In the event we exercise our option, as described above, not to comply with certain covenants
of the indenture with respect to any series of debt securities and the debt securities of that series are declared due and payable
because of the occurrence of any event of default, the amount of money and/or U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time
of their stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the
acceleration resulting from the event of default. However, we will remain liable for those payments.
Governing Law
The indenture
and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
DESCRIPTION
OF WARRANTS
We may issue
warrants to purchase debt securities, preferred stock, common stock or any combination of the foregoing. We may issue warrants
independently or together with any other securities we offer under a prospectus supplement. The warrants may be attached to or
separate from the securities. We will issue each series of warrants under a separate warrant agreement that we will enter into
with a bank or trust company, as warrant agent. The statements made in this section relating to the warrant agreement are summaries
only. These summaries are not complete. When we issue warrants, we will provide the specific terms of the warrants and the applicable
warrant agreement in a prospectus supplement. To the extent the information contained in the prospectus supplement differs from
this summary description, you should rely on the information in the prospectus supplement.
Debt Warrants
We will describe
in the applicable prospectus supplement the terms of the debt warrants being offered, the warrant agreement relating to the debt
warrants and the debt warrant certificates representing the debt warrants, including:
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the title of the debt warrants;
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the aggregate number of the debt warrants;
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the price or prices at which the debt warrants will be issued;
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the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants, and the procedures and conditions relating to the exercise of the debt
warrants;
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the designation and terms of any related debt securities with which
the debt warrants are issued, and the number of the debt warrants issued with each security;
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the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
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the principal amount of debt securities purchasable upon exercise
of each debt warrant, and the price at which the principal amount of the debt securities may be purchased upon exercise;
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the date on which the right to exercise the debt warrants will commence,
and the date on which the right will expire;
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the maximum or minimum number of the debt warrants that may be exercised
at any time;
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information with respect to book-entry procedures, if any;
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a discussion of the material U.S. federal income tax considerations
applicable to the exercise of the debt warrants; and
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any other terms of the debt warrants and terms, procedures and limitations
relating to the exercise of the debt warrants.
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Holders may
exchange debt warrant certificates for new debt warrant certificates of different denominations, and may exercise debt warrants
at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior
to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the securities purchasable
upon the exercise and will not be entitled to payments of principal, premium or interest on the securities purchasable upon the
exercise of debt warrants.
Equity Warrants
We will describe
in the applicable prospectus supplement the terms of the preferred stock warrants or common stock warrants being offered, the warrant
agreement relating to the preferred stock warrants or common stock warrants and the warrant certificates representing the preferred
stock warrants or common stock warrants, including:
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the title of the warrants;
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the securities for which the warrants are exercisable;
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the price or prices at which the warrants will be issued;
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if applicable, the number of warrants issued with each share of preferred
stock or share of common stock;
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if applicable, the date on and after which the warrants and the related
preferred stock or common stock will be separately transferable;
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the date on which the right to exercise the warrants will commence,
and the date on which the right will expire;
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the maximum or minimum number of warrants which may be exercised at
any time;
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information with respect to book-entry procedures, if any;
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a discussion of the material U.S. federal income tax considerations
applicable to exercise of the warrants; and
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any other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants.
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Unless otherwise
provided in the applicable prospectus supplement, holders of equity warrants will not be entitled, by virtue of being such holders,
to vote, consent, receive dividends, receive notice as stockholders with respect to any meeting of stockholders for the election
of our directors or any other matter, or to exercise any rights whatsoever as stockholders.
Except as
provided in the applicable prospectus supplement, the exercise price payable and the number of shares of common stock or preferred
stock purchasable upon the exercise of each warrant will be subject to adjustment in certain events, including the issuance of
a stock dividend to holders of common stock or preferred stock or a stock split, reverse stock split, combination, subdivision
or reclassification of common stock or preferred stock. In lieu of adjusting the number of shares of common stock or preferred
stock purchasable upon exercise of each warrant, we may elect to adjust the number of warrants. We may, at our option, reduce the
exercise price at any time. No fractional shares will be issued upon exercise of warrants, but we will pay the cash value of any
fractional shares otherwise issuable. Notwithstanding the foregoing, except as otherwise provided in the applicable prospectus
supplement, in case of any consolidation, merger, or sale or conveyance of our property as an entirety or substantially as an entirety,
the holder of each outstanding warrant will have the right to the kind and amount of shares of stock and other securities and property,
including cash, receivable by a holder of the number of shares of common stock or preferred stock into which each warrant was exercisable
immediately prior to the particular triggering event.
Exercise of Warrants
Each warrant
will entitle the holder of the warrant to purchase for cash at the exercise price provided in the applicable prospectus supplement
the principal amount of debt securities, or the shares of preferred stock or common stock, being offered. Holders may exercise
warrants at any time up to the close of business on the expiration date provided in the applicable prospectus supplement. After
the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants as described in the
prospectus supplement relating to the warrants being offered. Upon receipt of payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the debt securities or shares of preferred stock or shares of common stock purchasable
upon the exercise of the warrant. If less than all of the warrants represented by the warrant certificate are exercised, we will
issue a new warrant certificate for the remaining warrants.
PLAN OF
DISTRIBUTION
We may sell
the securities offered by this prospectus to one or more underwriters or dealers for public offering and sale by them or to investors
directly or through agents. The prospectus supplement will set forth the terms of the offering and the method of distribution and
will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
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the name or names of any underwriters, dealers or agents;
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the purchase price of our securities and the proceeds we will receive
from the sale;
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any options under which underwriters may purchase additional securities
from us;
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any agency fees or underwriting discounts and other items constituting
compensation to underwriters, dealers or agents;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers;
and
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any securities exchange or market on which our securities offered
in the prospectus supplement may be listed.
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Only underwriters
named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
The distribution
of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed,
or at prices determined as the applicable prospectus supplement specifies. If underwriters are used in the sale, they will acquire
the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public
offering price. The obligations of any underwriters to purchase the securities will be subject to the conditions set forth in the
applicable underwriting agreement. We may offer the securities to the public through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters may be obligated to purchase
all the securities offered by the prospectus supplement or they may only be obligated to purchase that portion of the securities
they are able to sell to the public. Any public offering price and any discounts or concessions allowed or reallowed or paid to
dealers may change from time to time. We may use underwriters with whom we have a material relationship, which we will describe
in the prospectus supplement, naming the underwriter and the nature of any such relationship. We may sell securities directly or
through agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will
describe any commissions we will pay the agent in the prospectus supplement.
We may authorize
underwriters, dealers or agents to solicit offers by certain types of institutional investors to purchase securities from us at
the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay
for solicitation of these contracts in the prospectus supplement.
Underwriters,
dealers and agents participating in the distribution may be deemed to be underwriters, and any discounts or commissions they receive
and any profit they realize on the resale of the securities may be deemed to be underwriting discounts and commissions under the
Securities Act. We may provide underwriters, dealers or agents with indemnification against civil liabilities related to this offering,
including liabilities under the Securities Act, or contribution with respect to payments that the underwriters, dealers or agents
may make with respect to such liabilities. Underwriters, dealers or agents may engage in transactions with, or perform services
for, us in the ordinary course of business. With respect to the sale of securities under this prospectus and any applicable prospectus
supplement, the maximum commission or discount to be received by any member of the Financial Industry Regulatory Authority, Inc.
or independent broker or dealer will not be greater than eight percent (8%).
Broker-dealers
engaged by us may arrange for other broker-dealers to participate in sales. If we effect such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions
in the form of discounts, concessions or commissions from us or commissions from purchasers of the shares of common stock for whom
they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except
as set forth in a supplement to this prospectus, in the case of an agency transaction will not be in excess of a customary brokerage
commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance with
FINRA IM-2440-1.
These securities
may or may not be listed on a national securities exchange. Any underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment involves
sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying
securities so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters
to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction
to cover short positions. Those activities may stabilize, maintain or otherwise affect the market price of the securities. As a
result, the price of the securities may be higher than the price that otherwise might exist in the open market. If commenced, the
underwriters may discontinue any of the activities at any time.
Any underwriters
who are qualified market makers on the NASDAQ Global Market may engage in passive market making transactions in the common stock
on the Nasdaq Global Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing
of the offering, before the commencement of offers or sales of common stock. Passive market makers must comply with applicable
volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its
bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive
market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Under the
securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of common stock may not be sold unless such shares have been registered or qualified
for sale in such state or an exemption from registration or qualification is available and is complied with.
There can
be no assurance that we will sell any or all of the securities registered pursuant to the registration statement of which this
prospectus forms a part.
LEGAL
MATTERS
The validity
of the shares of common stock offered hereby has been passed upon for us by Goodwin Procter 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,
2013 have been so incorporated in reliance on the report, which contains an explanatory paragraph relating to the Company’s
ability to continue as a going concern as described in Note 2 to the financial statements, of PricewaterhouseCoopers LLP, an independent
registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We file annual,
quarterly and other periodic reports, proxy statements and other information with the Commission. You may read and copy any document
we file with the Commission at its Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission
at 1-800-SEC-0330 for further information on the operation of the Public Reference Room. The Commission maintains an Internet site
that contains reports, proxy and information statements and other information regarding registrants that file electronically, including
us. The address of the site is
http://www.sec.gov
.
Our Internet
address is
www.baxanosurgical
.
com
. There we make available free of charge, on or through the investor relations section
of our website, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those
reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically
file such material with the Commission. The information on, or that can be accessed through, our website is not incorporated by
reference into this prospectus and should not be considered to be part of this prospectus or any other report we file with the
Commission.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The Commission
allows us to incorporate by reference the information we file with it, which means that we can disclose important information to
you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. We
incorporate by reference into this registration statement and prospectus the documents listed below and any filings we make with
the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial registration
statement and prior to effectiveness of the registration statement and (ii) after the date of this prospectus and before the consummation
or termination of this offering (other than, in each case, documents or information deemed to have been “furnished”
and not “filed” in accordance with Commission rules):
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2013, as filed with the Commission on March 11, 2014
(including the information specifically incorporated by reference into the Form 10-K from our definitive proxy statement on Schedule
14A for our 2014 Annual Meeting of Stockholders);
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Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, as filed with the Commission on May 13, 2014;
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Our Current Reports on Form 8-K, as filed with the Commission on January 8, 2014, February 11, 2014, March 14, 2014, April
17, 2014, June 6, 2014 and July 14, 2014; and
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The description of our Common Stock contained in our 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 Exchange Act, including any amendment or report filed for the purpose
of updating such description.
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Any statement
contained in a document incorporated or deemed to be incorporated by reference into this prospectus is modified or superseded for
purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified
or superseded does not, except as so modified or superseded, constitute a part of this prospectus.
You may request,
and we will provide you with, a copy of these filings, at no cost, by calling us at (919) 800-0020 or by writing to us at
the following address:
Baxano Surgical,
Inc.
110 Horizon
Drive, Suite 230
Raleigh,
NC 27615
Attn: Investor
Relations
$26,276,158
Debt Securities
Common Stock
Preferred Stock
Warrants
BAXANO
SURGICAL, INC.
PROSPECTUS
,
2014.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of
Issuance and Distribution.
The following
table sets forth all costs and expenses payable by us in connection with the sale of the securities being registered hereunder.
None of the expenses set forth herein shall be borne by the selling stockholders. All of the amounts shown are estimates except
for the Commission registration fee.
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Commission registration fee
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$
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5,805
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Transfer Agent and Registrar fees and expenses
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**
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Trustee fees and expenses
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**
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Legal fees and expenses
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**
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Accounting fees and expenses
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**
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Miscellaneous fees and expenses
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**
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Total
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$
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**
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** Estimated expenses are not
presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions)
that we anticipate we will incur in connection with the offering of securities under this registration statement. An estimate of
the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the
applicable prospectus supplement.
ITEM 15. Indemnification of
Directors and Officers.
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 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 Baxano Surgical 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 executive 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.
ITEM 16. Exhibits.
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Exhibit
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No.
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Description
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1.1**
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Form of Underwriting Agreement.
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3.1
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Amended and Restated Certificate of Incorporation as amended on April 17, 2014 (incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed with the Commission on May 13, 2014).
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4.1
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Specimen common stock certificate (incorporated by reference to Exhibit 4.1 to our Registration Statement on Form S-3 (File No. 333-189617) filed with the Commission on June 26, 2013).
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4.2
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Form of Indenture related to debt securities (incorporated by reference to Exhibit 4.1 to our Registration Statement on Form S-3 (File. No. 333-174255) filed with the Commission on May 16, 2011).
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4.3**
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Form of Debt Security.
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4.4**
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Certificate of Designation for Preferred Stock
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4.5**
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Form of Warrant Agreement
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5.1*
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Opinion of Goodwin Procter LLP
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23.1*
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Consent of Goodwin Procter LLP (included in Exhibit 5.1).
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23.2*
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
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24.1*
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Power of Attorney (included on the signature page to the original filing of this Registration Statement on Form S-3).
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25.1+
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Form T-1 Statement of Eligibility and Qualification of the Trustee under the Indenture with respect to the debt securities.
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* Filed herewith.
**To be filed by amendment or
pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable, and
incorporated herein by reference.
+To be filed by amendment or
pursuant to Trust Indenture Act Section 305(b)(2), if applicable.
ITEM 17. Undertakings.
(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:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
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(ii)
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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 any 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
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
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provided, however
,
that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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 Securities Exchange Act of 1934, as amended, that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, as amended,
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.
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(3)
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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.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
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(i)
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each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof;
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provided,
however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was part of the registration statement or made in any
such document immediately prior to such date of first use.
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(b)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933
to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
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(1) any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(2) any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(3) the portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(4)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(c)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under
the Securities Act of 1933, as amended, each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, 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.
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(d)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended,
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 Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, 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 of 1933, as amended, and
will be governed by the final adjudication of such issue.
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(e)
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The undersigned registrant hereby undertakes to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 (the “TIA”)
in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the
TIA, to the extent applicable.
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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 Raleigh, State of North Carolina, on July 31, 2014.
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Baxano Surgical, Inc.
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By:
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/s/ Ken Reali
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Ken Reali
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Chief Executive Officer and President (Principal Executive Officer)
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POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ken Reali and Timothy M. Shannon,
and either of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments)
and supplements to this registration statement (or any other registration statement for the same offering that is effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended) and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact and agents, or his or her substitute or substitutes, may 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.
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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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July 3
1
, 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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July 3
1
, 2014
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Timothy M. Shannon
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/s/ Jeffrey Fischgrund
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Director
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July 3
1
, 2014
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Jeffrey Fischgrund
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/s/ Russell Hirsch
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Director
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July 3
1
, 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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July 3
1
, 2014
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Paul LaViolette
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/s/ James Shapiro
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Director
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July 3
1
, 2014
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James Shapiro
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/s/ David Simpson
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Director
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July 3
1
, 2014
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David Simpson
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/s/ Mark Stautberg
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Director
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July 3
1
, 2014
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Mark Stautberg
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/s/ Roderick Young
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Director
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July 3
1
, 2014
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Roderick Young
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EXHIBIT
INDEX
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Exhibit
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No.
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Description
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1.1**
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Form of Underwriting Agreement.
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3.1
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Amended and Restated Certificate of Incorporation as amended on April 17, 2014 (incorporated by reference to Exhibit 3.1 to our Quarterly Report on Form 10-Q filed with the Commission on May 13, 2014).
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4.1
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Specimen common stock certificate (incorporated by reference to Exhibit 4.1 to our Registration Statement on Form S-3 (File No. 333-189617) filed with the Commission on June 26, 2013).
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4.2
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Form of Indenture related to debt securities (incorporated by reference to Exhibit 4.1 to our Registration Statement on Form S-3 (File. No. 333-174255) filed with the Commission on May 16, 2011).
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4.3**
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Form of Debt Security.
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4.4**
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Certificate of Designation for Preferred Stock
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4.5**
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Form of Warrant Agreement
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5.1*
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Opinion of Goodwin Procter LLP
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23.1*
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Consent of Goodwin Procter LLP (included in Exhibit 5.1).
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23.2*
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
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24.1*
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Power of Attorney (included on the signature page to the original filing of this Registration Statement on Form S-3).
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25.1+
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Form T-1 Statement of Eligibility and Qualification of the Trustee under the Indenture with respect to the debt securities.
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* Filed herewith.
**To be filed by amendment or
pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable, and
incorporated herein by reference.
+To be filed by amendment or
pursuant to Trust Indenture Act Section 305(b)(2), if applicable.