- Securities Registration Statement (simplified form) (S-3)
May 18 2009 - 8:18AM
Edgar (US Regulatory)
Registration No. 333-_____
As filed with the Securities and Exchange
Commission on May 18, 2009
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAKO Surgical Corp.
(Exact name of registrant as specified in its charter)
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Delaware
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20-1901148
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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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2555 Davie Road
Fort Lauderdale, FL 33317
(954) 927-2044
(Address, including zip code, and telephone number,
including area code, of registrants principal executive offices)
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Maurice R. Ferré, M.D.
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with a copy to:
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President and Chief Executive Officer
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Jay O. Rothman
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MAKO Surgical Corp.
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Foley & Lardner LLP
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2555 Davie Road
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777 East Wisconsin Avenue
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Fort Lauderdale, FL 33317
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Milwaukee, Wisconsin 53202-5306
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(954) 927-2044
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(414) 271-2400
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(Name, address, including zip code, and telephone number,
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including area code, of agent
for service)
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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.
x
If
this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
o
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.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of large accelerated filer, accelerated filer and smaller
reporting company in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
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Accelerated
filer
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Non-accelerated
filer
x
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Smaller
reporting company
o
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of
each class of
securities to be registered
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Amount to
be registered/
Proposed maximum offering price per unit/
Proposed maximum offering price (1)
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Amount of
registration fee
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Debt Securities
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Common Stock, $.001 par value
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$50,000,000
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$2,790
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Preferred Stock, $.001 par value
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Warrants
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Stock Purchase Contracts
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Stock Purchase Units
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(1)
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Estimated
for purposes of calculating the registration fee pursuant to Rule 457(o) and
General Instruction II.D. of Form S-3. Separate consideration may or may not
be received for securities that are issuable on exercise, conversion or
exchange of other securities or that are issued in units. This registration statement also covers
delayed delivery contracts that may be issued by the Registrant under which
the party purchasing such contracts may be required to purchase debt
securities, common stock or preferred stock.
Such contracts may be issued together with the specific securities to
which they relate. In addition,
securities registered hereunder may be sold either separately or as units
comprised of more than one type of security registered hereunder.
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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 or
until the registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an
offer to sell these securities nor a solicitation of an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
(Subject to completion, dated May 18, 2009)
Prospectus
MAKO Surgical Corp.
Debt Securities
Common Stock
Preferred Stock
Warrants
Stock Purchase Contracts
Stock Purchase Units
We may
offer and sell from time to time our securities in one or more classes or
series and in amounts, at prices and on terms that we will determine at the
times of the offerings.
This
prospectus describes the general manner in which our securities may be offered
using this prospectus. We will provide specific terms of the securities,
including the offering prices, in one or more supplements to this
prospectus. The supplements may also
add, update or change information contained in this prospectus. You should read this prospectus and the
prospectus supplement relating to the specific issue of securities carefully
before you invest.
We may
offer the securities independently or together in any combination for sale
directly to purchasers or through underwriters, dealers or agents to be
designated at a future date. The
supplements to this prospectus will provide the specific terms of the plan of
distribution.
Our common
stock is listed on the NASDAQ Global Market under the symbol MAKO.
Investment in our securities involves risks. See
Risk
Factors in our most recent Annual Report on Form 10-K and in any applicable
prospectus supplement and/or other offering material for a discussion of
certain factors which should be considered in an investment of the securities
which may be offered hereby.
Neither the
Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is
___________, 2009.
TABLE OF
CONTENTS
ABOUT THIS PROSPECTUS
Unless
the context otherwise requires, in this prospectus, MAKO, company, we,
us, our and ours refer to MAKO Surgical Corp.
This
prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, or SEC, using a shelf registration
process. Under this shelf registration
process, we may, from time to time, sell the securities or combinations of the
securities described in this prospectus in one or more offerings. This prospectus provides you with a general
description of the securities that we may offer. Each time we offer securities, we will provide a prospectus
supplement and/or other offering material that will contain specific information
about the terms of that offering. The
prospectus supplement and/or other offering material may also add, update or
change information contained in this prospectus. You should read this prospectus, any prospectus supplement and
any other offering material together with additional information described
under the heading Where You Can Find More Information.
You should
rely only on the information contained or incorporated by reference in this
prospectus and in any prospectus supplement or other offering material. 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. We are not making
offers to sell or solicitations to buy the securities in any jurisdiction in
which an offer or solicitation is not authorized or in which the person making
that offer or solicitation is not qualified to do so or to anyone to whom it is
unlawful to make an offer or solicitation.
You should not assume that the information in this prospectus, any
prospectus supplement or any other offering material, or the information we
previously filed with the SEC that we incorporate by reference in this
prospectus or any prospectus supplement, is accurate as of any date other than
its respective date. Our business,
financial condition, results of operations and prospects may have changed since
those dates.
We
have received or applied for trademark registration of and/or claim trademark
rights, including the following marks that appear in this prospectus:
MAKOplasty®, RIO, RESTORIS®, Tactile Guidance System and TGS,
as well
as in the MAKO Surgical Corp. MAKO logo, whether standing alone or in
connection with the words MAKO Surgical Corp. Any other trademarks, trade
names and service marks appearing in this prospectus or incorporated by
reference are the property of their respective owners.
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MAKO SURGICAL CORP.
We
are a medical device company that markets our advanced robotic arm solution and
orthopedic implants for minimally invasive orthopedic knee procedures. We offer
MAKOplasty, an innovative, restorative surgical solution that enables
orthopedic surgeons to consistently, reproducibly and precisely treat patient
specific, early to mid-stage osteoarthritic knee disease.
MAKOplasty
is performed using our proprietary, U.S. Food and Drug Administration
cleared robotic arm system and proprietary knee resurfacing implants. Our
robotic arm systems, branded as our first generation Tactile Guidance System
and our second generation RIO Robotic Arm Interactive Orthopedic system utilize
tactile guided robotic arm technology and patient specific visualization to
prepare the knee joint for the insertion and alignment of our resurfacing
implants through a small incision in a minimally invasive, bone preserving and
tissue sparing procedure. Our RESTORIS family of knee implants is designed to
enable minimally invasive restoration of one or two of the diseased
compartments of the knee joint. We believe MAKOplasty will empower physicians
to address the needs of the large and growing, yet underserved, population of
patients with early to mid-stage osteoarthritic knee disease who desire a
restoration of quality of life and reduction of pain, but for whom current
surgical treatments are not appropriate or desirable due to the highly invasive
nature of such procedures, the slow recovery and the substantial costs of
rehabilitation, medication and hospitalization.
We are a
Delaware corporation and our principal executive offices are located at 2555
Davie Road, Fort Lauderdale, Florida 33317. Our telephone number is (954) 927-2044. Our website address is
www.makosurgical.com
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We do not incorporate the information on our
website into this prospectus, and you should not consider it part of this
prospectus.
USE OF PROCEEDS
Unless
otherwise described in the applicable prospectus supplement, we intend to use
the net proceeds from the sale of the securities for general corporate
purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND AND ACCRETION REQUIREMENTS
The
following table presents our ratio of earnings to fixed charges and ratio of
earnings to combined fixed charges and preferred stock dividend and accretion
requirements for the periods presented.
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The Company
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Predecessor (1)
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Three
Months
Ended
March 31,
2009
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Nov. 12, 2004
through
Dec. 31,
2004
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Jan. 1, 2004
through
Nov.11,
2004
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Years Ended December 31,
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2008
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2007
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2006
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2005
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Ratio of earnings to fixed charges
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(2)
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(2)
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(2)
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(2)
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(2)
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(2)
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(1)
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Ratio of earnings to combined fixed charges and
preferred stock dividend and accretion requirements
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(3)
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(4)
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(4)
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(4)
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(4)
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(4)
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(1)
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(1)
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We
were formed in November 2004 to be the successor of the computer assisted
surgery, or CAS, and haptic robotics business of Z-Kat, Inc., a company
founded in 1997 to develop CAS technologies.
Z-Kat, Inc. is considered to be our Predecessor. The financial information for the period
from January 1, 2004 to November 11, 2004 has been derived from the
Predecessors statement of operations. The Predecessors deficiency of
earnings available to fixed charges and deficiency of earnings available to
combined fixed charges and preferred stock dividend and accretion for the
period from January 1, 2004 to November 11, 2004 was $4.4 million
and $5.2 million, respectively.
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(2)
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Earnings
for the three months ended March 31, 2009, for the years ended
December 31, 2008, 2007, 2006 and 2005, and for the period from November
12, 2004 through December 31, 2004 were inadequate to cover total fixed
charges. The coverage deficiencies
for the three months ended March 31, 2009, for the years ended
December 31, 2008, 2007, 2006 and 2005, and for the period from November
12, 2004 through December 31, 2004 were $8.9 million, $37.1 million, $20.7
million, $10.6 million, $5.1 million and $1.0 million, respectively.
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(3)
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All
outstanding shares of our preferred stock were converted to common stock
immediately prior to the closing of our initial public offering on February
20, 2008. Accordingly, we did not
have any preferred stock outstanding and we did not pay or accrue any
preferred stock dividends during the three months ended March 31, 2009.
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(4)
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Earnings
for the years ended December 31, 2008, 2007, 2006 and 2005, and for the
period from November 12, 2004 through December 31, 2004 were inadequate to
cover combined fixed charges and preferred stock dividend and accretion
requirements. The coverage
deficiencies for the years ended December 31, 2008, 2007, 2006 and 2005,
and for the period from November 12, 2004 through December 31, 2004 were
$37.6 million, $24.3 million, $12.5 million, $6.3 million and $1.1 million,
respectively.
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For
purposes of calculating the ratios of consolidated earnings to fixed charges,
earnings before income taxes and fixed charges are divided by fixed
charges. Fixed charges represent
interest (whether expensed or capitalized), the amortization of debt discount
and expenses and the estimated interest component of rent expense.
DESCRIPTION OF DEBT SECURITIES
The
following description of the terms of the debt securities sets forth general
terms that may apply to the debt securities and provisions of the indenture
that will govern the debt securities, and is not complete. We will describe the particular terms of any
debt securities in the prospectus supplement relating to those debt securities.
The
debt securities will be our senior debt securities and will be issued under an
indenture between us and a trustee, a form of which is incorporated by
reference into this prospectus and attached as an exhibit to the registration
statement of which this prospectus is a part. See Where You Can Find More
Information. We refer to this indenture as the indenture.
The
following is a summary of some provisions of the indenture. The following
summary does not purport to be complete, and is subject to, and qualified in
its entirety by reference to, all of the provisions of the indenture, including
the definitions of specified terms used in the indenture, and the debt securities. We encourage you to read the indenture and
the debt securities because they, and not this description, set forth your
rights as a holder of our debt securities. We will describe the particular
terms of any debt securities in the prospectus supplement relating to those
debt securities. Parenthetical section references under this heading are
references to sections in the indenture unless we indicate otherwise.
General Terms
The
indenture does not limit the amount of debt securities that we may issue.
(Section 301). The indenture provides that debt securities may be issued up to
the principal amount authorized by us from time to time. The debt securities
will be unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. None of our subsidiaries, if any, will have any
obligations with respect to the debt securities. Therefore, our rights and the
rights of our creditors, including holders of senior debt securities and
subordinated debt securities, to participate in the assets of any subsidiary
will be subject to the prior claims of the creditors of any such subsidiaries.
We
may issue the debt securities in one or more separate series of senior debt
securities. (Section 301). The prospectus supplement relating to the particular
series of debt securities being offered will specify the particular amounts,
prices and terms of those debt securities. These terms may include:
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the title of
the debt securities and the series in which the debt securities will be
included;
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the
authorized denominations and aggregate principal amount of the debt
securities;
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the date or
dates on which the principal and premium, if any, are payable;
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the rate or
rates per annum at which the debt securities will bear interest, if there is
any interest, or the method or methods of calculating interest and the date
from which interest will accrue;
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the place or
places where the principal of and any premium and interest on the debt securities
will be payable;
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the dates on
which the interest will be payable and the corresponding record dates;
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the period
or periods within which, the price or prices at which, and the terms and
conditions on which, the debt securities may be redeemed, in whole or in
part, at our option;
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any
obligation to redeem, repay or purchase debt securities pursuant to any
sinking fund or analogous provisions or at the option of a holder;
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the portion
of the principal amount of the debt securities payable upon declaration of
the acceleration of the maturity of the debt securities;
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the person
to whom any interest on any debt security will be payable if other than the
person in whose name the debt security is registered on the applicable record
date;
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any events
of default, covenants or warranties applicable to the debt securities;
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if
applicable, provisions related to the issuance of debt securities in
book-entry form;
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the
currency, currencies or composite currency of denomination of the debt
securities;
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the
currency, currencies or composite currencies in which payments on the debt
securities will be payable and whether the holder may elect payment to be
made in a different currency;
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whether and
under what conditions we will pay additional amounts to holders of the debt
securities;
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the terms
and conditions of any conversion or exchange provisions in respect of the
debt securities;
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the terms
pursuant to which our obligation under the indenture may be terminated
through the deposit of money or government obligations; and
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any other
specific terms of the debt securities not inconsistent with the indenture.
(Section 301).
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Unless
otherwise specified in the applicable prospectus supplement, the debt
securities will not be listed on any securities exchange.
Unless
the applicable prospectus supplement specifies otherwise, we will issue the
debt securities in fully registered form without coupons. If we issue debt
securities of any series in bearer form, the applicable prospectus supplement
will describe the special restrictions and considerations, including special
offering restrictions and special federal income tax considerations, applicable
to those debt securities and to payment on and transfer and exchange of those
debt securities.
U.S. Federal Income Tax Considerations
We
may issue the debt securities as original issue discount securities, bearing no
interest or bearing interest at a rate, which, at the time of issuance, is
below market rates, to be sold at a substantial discount below their principal
amount. We will describe some special U.S. federal income tax and other
considerations applicable to any debt securities that are issued as original
issue discount securities in the applicable prospectus supplement. We encourage
you to consult with your own competent tax and financial advisors on these
important matters.
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Payment, Registration, Transfer and Exchange
Subject
to any applicable laws or regulations, we will make payments on the debt
securities at a designated office or agency, unless the applicable prospectus
supplement otherwise sets forth. At our option, however, we may also make
interest payments on the debt securities in registered form:
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by checks
mailed to the persons entitled to interest payments at their registered
addresses; or
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by wire
transfer to an account maintained by the person entitled to interest payments
as specified in the security register.
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Unless the
applicable prospectus supplement otherwise indicates, we will pay any
installment of interest on debt securities in registered form to the person in
whose name the debt security is registered at the close of business on the regular
record date for that installment of interest. (Section 307). If a holder wishes
to receive payment by wire transfer, the holder should provide the paying agent
with written wire transfer instructions at least 15 days prior to the payment
date.
Unless
the applicable prospectus supplement otherwise sets forth, debt securities
issued in registered form will be transferable or exchangeable at the agency we
may designate from time to time. Debt securities may be transferred or
exchanged without service charge, other than any tax or other governmental
charge imposed in connection with the transfer or exchange. (Section 305).
Book-Entry Procedures
The
applicable prospectus supplement for each series of debt securities will state
whether those debt securities will be subject to the following provisions.
Unless
debt securities in physical form are issued, the debt securities will be
represented by one or more fully-registered global certificates, in
denominations of $1,000 or any integral multiple of $1,000. Each global
certificate will be deposited with, or on behalf of, The Depository Trust
Company, which we refer to in this prospectus as DTC, and registered in its
name or in the name of Cede & Co. or other nominee of DTC. No holder of
debt securities initially issued as a global certificate will be entitled to
receive a certificate in physical form, except as set forth below.
DTC
has advised us that:
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DTC is:
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a banking
organization within the meaning of the New York banking law;
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a limited
purpose trust company organized under the New York banking law;
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a member of
the Federal Reserve System;
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a clearing
corporation within the meaning of the New York Uniform Commercial Code;
and
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a clearing
agency registered pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
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DTC holds
securities for DTC participants and facilitates the settlement of securities
transactions between DTC participants through electronic book-entry transfers
and pledges, thereby eliminating the need for physical movement of
certificates.
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DTC
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and other organizations.
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Access to
DTCs book-entry system is also available to others, such as banks, brokers,
dealers, trust companies and clearing corporations that clear through or
maintain a custodial relationship with a DTC participant, either directly or
indirectly.
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Holders
that are not DTC participants but desire to purchase, sell or otherwise
transfer ownership of, or other interests in, the debt securities may do so
only through DTC participants. In addition, holders of the debt securities will
receive all distributions of principal and interest from the trustee through
DTC participants. Under the rules, regulations and procedures creating and
affecting DTC and its operation, DTC is required to make book-entry transfers
of debt securities among DTC participants on whose behalf it acts and to
receive and transmit distributions of principal of, and interest on, the debt
securities. Under the book-entry system, holders of debt securities may
experience some delay in receipt of payments, since the trustee will forward
such payments to Cede & Co., as nominee for DTC, and DTC, in turn, will
forward the payments to the appropriate DTC participants.
DTC
participants will be responsible for distributions to holders of debt
securities, which distributions will be made in accordance with customary
industry practices. Although holders of debt securities will not have possession
of the debt securities, the DTC rules provide a mechanism by which those
holders will receive payments and will be able to transfer their interests.
Although the DTC participants are expected to convey the rights represented by
their interests in any global security to the related holders, because DTC can
act only on behalf of DTC participants, the ability of holders of debt
securities to pledge the debt securities to persons or entities that are not
DTC participants or to otherwise act with respect to the debt securities may be
limited due to the lack of physical certificates for the debt securities.
Neither
we nor the trustee will be responsible or liable for any aspect of the records
relating to, or payments made on account of, beneficial ownership interests in
the debt securities or for supervising or reviewing any records relating to
such beneficial ownership interests. Since the only holder of debt
securities, for purposes of the indenture, will be DTC or its nominee, the
trustee will not recognize beneficial holders of debt securities as holders of
debt securities, and beneficial holders of debt securities will be permitted
to exercise the rights of holders only indirectly through DTC and DTC
participants. DTC has advised us that it will take any action permitted to be
taken by a holder of debt securities under the indenture only at the direction
of one or more DTC participants to whose accounts with DTC the related debt
securities are credited.
All
payments we make to the trustee will be in immediately available funds and will
be passed through to DTC in immediately available funds.
Physical
certificates will be issued to holders of a global security, or their nominees,
if:
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DTC advises
the trustee in writing that DTC is no longer willing, able or eligible to
discharge properly its responsibilities as depository and we are unable to
locate a qualified successor; or
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we decide in
our sole discretion to terminate the book-entry system through DTC. (Section
305).
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In such event,
the trustee will notify all holders of debt securities through DTC participants
of the availability of such physical debt securities. Upon surrender by DTC of
a definitive global note representing the debt securities and receipt of
instructions for reregistration, the trustee will reissue the debt securities
in physical form to holders or their nominees. (Section 305).
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Debt
securities in physical form will be freely transferable and exchangeable at the
office of the trustee upon compliance with the requirements set forth in the
indenture.
No
service charge will be imposed for any registration of transfer or exchange,
but payment of a sum sufficient to cover any tax or other governmental charge
may be required. (Section 305).
Consolidation, Merger or Sale by the Company
The
indenture generally permits a consolidation or merger between us and another
U.S. corporation. It also permits the sale or transfer by us of all or
substantially all of our property and assets and the purchase by us of all or
substantially all of the property and assets of another corporation. These
transactions are permitted if:
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the
resulting or acquiring corporation, if other than us, assumes all of our
responsibilities and liabilities under the indenture, including the payment
of all amounts due on the debt securities and performance of the covenants in
the indenture; and
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immediately
after the transaction, no event of default exists. (Section 801).
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Even
though the indenture contains the provisions described above, we are not
required by the indenture to comply with those provisions if we sell all of our
property and assets to another U.S. corporation if, immediately after the sale,
that corporation is one of our wholly-owned subsidiaries. (Section 801).
If
we consolidate or merge with or into any other corporation or sell all or
substantially all of our assets according to the terms and conditions of the
indenture, the resulting or acquiring corporation will be substituted for us in
the indenture with the same effect as if it had been an original party to the
indenture. As a result, the successor corporation may exercise our rights and
powers under the indenture, in our name or in its own name and we will be
released from all our liabilities and obligations under the indenture and under
the debt securities. (Section 801).
Events of Default, Notice and Certain Rights
on Default
Unless
otherwise stated in the applicable prospectus supplement, an event of
default, when used with respect to any series of debt securities, means any of
the following:
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failure to
pay interest on any debt security of that series for 30 days after the
payment is due;
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failure to
pay the principal of or any premium on any debt security of that series when
due;
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failure to
deposit any sinking fund payment on debt securities of that series when due;
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failure to
perform any other covenant in the indenture that applies to debt securities
of that series for 90 days after we have received written notice of the
failure to perform in the manner specified in the indenture;
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certain
events in bankruptcy, insolvency or reorganization; or
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any other
event of default that may be specified for the debt securities of that series
when that series is created. (Section 502).
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If
an event of default for any series of debt securities occurs and continues, the
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If a
declaration occurs, the holders of a majority of the aggregate principal amount
of the outstanding debt securities of that series can, subject to certain
conditions, rescind the declaration. (Section 502).
- 8 -
The
prospectus supplement relating to each series of debt securities which are
original issue discount securities will describe the particular provisions that
relate to the acceleration of maturity of a portion of the principal amount of
that series when an event of default occurs and continues.
An
event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under the indenture.
The
indenture requires us to furnish an officers certificate to the trustee each
year as to the knowledge of our principal executive, financial or accounting
officer of our compliance with all conditions and covenants under the
indenture. (Section 1008). The trustee will transmit by mail to the holders of
debt securities of a series notice of any default.
Other
than its duties in the case of a default, the trustee will not be obligated to
exercise any of its rights or powers under an indenture at the request, order
or direction of any holders, unless the holders offer the trustee
indemnification satisfactory to the trustee. (Section 603). If indemnification
satisfactory to the trustee is provided, then, subject to certain other rights
of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series may, with respect to the debt
securities of that series, direct the time, method and place of:
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conducting
any proceeding for any remedy available to the trustee; or
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exercising
any trust or power conferred upon the trustee. (Section 512).
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The
holder of a debt security of any series will have the right to begin any
proceeding with respect to the indenture or for any remedy only if:
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the holder
has previously given the trustee written notice of a continuing event of
default with respect to that series;
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the holders
of at least 25% in aggregate principal amount of the outstanding debt
securities of that series have made a written request of, and offered
reasonable indemnification to, the trustee to begin the proceeding;
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the trustee
has not started the proceeding within 60 days after receiving the request;
and
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the trustee
has not received directions inconsistent with the request from the holders of
a majority in aggregate principal amount of the outstanding debt securities
of that series during those 60 days. (Section 507).
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The
holders of not less than a majority in aggregate principal amount of any series
of debt securities, by notice to the trustee for that series, may waive, on
behalf of the holders of all debt securities of that series, any past default
or event of default with respect to that series and its consequences. (Section
513). A default or event of default in the payment of the principal of, or
premium or interest on, any debt security and certain other defaults may not,
however, be waived. (Sections 508 and 513).
Modification of the Indenture
We,
as well as the trustee for a series of debt securities, may enter into one or
more supplemental indentures, without the consent of the holders of any of the
debt securities, in order to:
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evidence the
succession of another corporation to us and the assumption of our covenants
by a successor;
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add to our
covenants or surrender any of our rights or powers;
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- 9 -
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add
additional events of default for any series;
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add, change
or eliminate any provision affecting debt securities that are not yet issued;
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secure the
debt securities;
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establish
the form or terms of debt securities not yet issued;
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evidence and
provide for successor trustees;
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add, change
or eliminate any provision affecting registration as to principal of debt
securities;
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permit the
exchange of debt securities;
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change or
eliminate restrictions on payment in respect of debt securities;
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change or
eliminate provisions or add any other provisions that are required or
desirable in accordance with any amendments to the Trust Indenture Act of
1939, which we refer to in this prospectus as the Trust Indenture Act, on the
condition that this action does not adversely affect the interests of any
holder of debt securities of any series issued under the indenture in any
material respect; or
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cure any
ambiguity or correct any mistake. (Section 901).
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In
addition, with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of all series
affected by the supplemental indenture, we and the trustee may execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the indenture or any supplemental indenture or modifying
the rights of the holders of debt securities of that series. No such
supplemental indenture may, however, without the consent of the holder of each
debt security that is affected:
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change the
time for payment of principal or interest on any debt security;
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reduce the
principal of, or any installment of principal of, or interest on, any debt
security;
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reduce the
amount of premium, if any, payable upon the redemption of any debt security;
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reduce the
amount of principal payable upon acceleration of the maturity of an original
issue discount debt security;
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impair the
right to institute suit for the enforcement of any payment on or for any debt
security;
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reduce the
percentage in principal amount of the outstanding debt securities of any
series the consent of whose holders is required for modification or amendment
of the indenture or for waiver of compliance with certain provisions of the
indenture or for waiver of certain defaults;
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modify the
provisions relating to waiver of some defaults or any of the foregoing
provisions;
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change the
currency of payment;
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adversely
affect the right to repayment of debt securities of any series at the option
of the holders of those debt securities; or
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change the
place of payment. (Section 902).
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- 10 -
Any
supplemental indenture will be filed with the SEC as an exhibit to:
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a
post-effective amendment to the registration statement of which this
prospectus is a part;
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an annual
report on Form 10-K;
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a quarterly
report on Form 10-Q; or
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a current
report on Form 8-K.
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Defeasance and Covenant Defeasance
When
we use the term defeasance, we mean discharge from some or all of our
obligations under the indenture. If we deposit with the trustee sufficient cash
or government obligations to pay the principal, interest, any premium and any
mandatory sinking fund or analogous payments due to the stated maturity or a
redemption date of the debt securities of a particular series, then at our
option:
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we will be
discharged from our obligations for the debt securities of that series, the
holders of the debt securities of the affected series will no longer be
entitled to the benefits of the indenture, except for registration of
transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities, and those holders may look only to the deposited
funds or obligations for payment, which is referred to as defeasance; or
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we will no
longer be under any obligation to comply with certain covenants under the
indenture as it relates to that series, and some events of default will no
longer apply to us, which is referred to as covenant defeasance. (Sections
403 and 1501).
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Unless
the applicable prospectus supplement specifies otherwise and except as
described below, the conditions to both defeasance and covenant defeasance are
as follows:
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it must not
result in a breach or violation of, or constitute a default or event of
default under, the indenture, or result in a breach or violation of, or
constitute a default under, any other of our material agreements or
instruments;
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certain
bankruptcy-related defaults or events of default with respect to us must not
have occurred and be occurring during the period commencing on the date of
the deposit of the trust funds to defease the debt securities and ending on
the 91st day after that date;
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we must
deliver to the trustee an officers certificate and an opinion of counsel
addressing compliance with the conditions of the defeasance or covenant
defeasance; and
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we must
comply with any additional conditions to the defeasance or covenant
defeasance that the indenture may impose on us. (Sections 403 and 1501).
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In
the event that government obligations deposited with the trustee for the
defeasance of such debt securities decrease in value or default subsequent to
their being deposited, we will have no further obligation, and the holders of
the debt securities will have no additional recourse against us, for any
decrease in value or default. If indicated in the prospectus supplement, in
addition to obligations of the United States or an agency or instrumentality of
the United States, government obligations may include obligations of the
government or an agency or instrumentality of the government issuing the
currency in which debt securities of such series are payable.
- 11 -
We
may exercise our defeasance option for the debt securities even if we have
already exercised our covenant defeasance option. If we exercise our defeasance
option, payment of the debt securities may not be accelerated because of
default or an event of default. If we exercise our covenant defeasance option,
payment of the debt securities may not be accelerated because of default or an
event of default with respect to the covenants to which the covenant defeasance
is applicable. If, however, acceleration occurs, the realizable value at the
acceleration date of the money and government obligations in the defeasance
trust could be less than the principal and interest then due on the debt
securities, because the required deposit in the defeasance trust is based on
scheduled cash flow rather than market value, which will vary depending on
interest rates and other factors.
Conversion and Exchange Rights
The
debt securities of any series may be convertible into or exchangeable for other
securities of our company or another issuer or property or cash on the terms
and subject to the conditions set forth in the applicable prospectus
supplement. (Section 301).
Governing Law
The
indenture and the debt securities will be governed by, and construed under, the
laws of the State of New York without regard to conflicts of laws principles
thereof.
Regarding the Trustee
We
may from time to time maintain lines of credit, and have other customary
banking relationships, with the trustee under the indenture.
The
indenture and provisions of the Trust Indenture Act that are incorporated by
reference therein contain limitations on the rights of the trustee, should it
become one of our creditors, to obtain payment of claims in certain cases or to
realize on certain property received by it in respect of any such claim as security
or otherwise. The trustee is permitted to engage in other transactions with us
or any of our affiliates; provided, however, that if it acquires any
conflicting interest (as defined under the Trust Indenture Act), it must
eliminate such conflict or resign.
- 12 -
DESCRIPTION OF
CAPITAL STOCK
Our
authorized capital stock consists of 135,000,000 shares of common stock, par
value $0.001 per share, and 27,000,000 shares of preferred stock, par value
$0.001 per share. As of April 30, 2009, 25,031,152 shares of our common stock
were outstanding. As of the date of this prospectus, no shares of our preferred
stock were outstanding.
The
following description of our capital stock summarizes general terms and
provisions that apply to our capital stock. This summary is not complete and is
qualified in its entirety by reference to applicable Delaware law, our third
amended and restated certificate of incorporation and our fourth amended and
restated bylaws, which are filed as exhibits to the registration statement of
which this prospectus is a part and incorporated by reference into this
prospectus. See Where You Can Find More Information.
Common Stock
Outstanding
Shares and Voting Rights
. Each holder of common stock
is entitled to one vote for each share of common stock held on all matters
submitted to a vote of the stockholders, including the election of directors.
Our third amended and restated certificate of incorporation and fourth amended
and restated bylaws do not provide for cumulative voting rights. Because of
this, the holders of a majority of the shares of common stock entitled to vote
in any election of directors can elect all of the directors standing for
election, if they should so choose.
Dividends
.
Subject to preferences that may be applicable to any then outstanding preferred
stock, the holders of our outstanding shares of common stock are entitled to
receive dividends, if any, as may be declared from time to time by our board of
directors out of legally available funds.
Liquidation
.
In the event of our liquidation, dissolution or winding up, holders of common
stock will be entitled to share ratably in the net assets legally available for
distribution to stockholders after the payment of all of our debts and other
liabilities, subject to the satisfaction of any liquidation preference granted
to the holders of any outstanding shares of preferred stock.
Rights
and Preferences
. Holders of our common stock have no
preemptive, conversion or subscription rights, and there are no redemption or
sinking fund provisions applicable to our common stock. The rights, preferences
and privileges of the holders of common stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of our
preferred stock that we may designate and issue in the future.
Fully
Paid and Nonassessable
. All of our outstanding shares
of common stock are fully paid and nonassessable.
Preferred Stock
Under
the third amended and restated certificate of incorporation, our board of
directors has the authority, without further action by the stockholders, to
issue up to 27,000,000 shares of preferred stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, to fix the rights, preferences and privileges of the shares of each
wholly unissued series and any qualifications, limitations or restrictions
thereon, and to increase or decrease the number of shares of any such series,
but not below the number of shares of such series then outstanding.
Our
board of directors may authorize the issuance of preferred stock with voting or
conversion rights that 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 our control and may adversely affect the
market price of the common stock and the voting, liquidation and other rights
of the holders of common stock.
- 13 -
If
we offer preferred stock, we will file the terms of the preferred stock with
the SEC and the prospectus supplement and/or other offering material relating
to that offering will include a description of the specific terms of the
offering, including the following:
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the series,
the number of shares offered and the liquidation value of the preferred
stock;
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the price at
which the preferred stock will be issued;
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the dividend
rate, the dates on which the dividends will be payable and other terms
relating to the payment of dividends on the preferred stock;
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the
liquidation preference of the preferred stock;
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the voting
rights of the preferred stock;
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whether the
preferred stock is redeemable or subject to a sinking fund, and the terms of
any such redemption or sinking fund;
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whether the
preferred stock is convertible or exchangeable for any other securities, and
the terms of any such conversion; and
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any
additional rights, preferences, qualifications, limitations and restrictions
of the preferred stock.
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Warrants
As
of April 30, 2009, warrants exercisable for a total of 2,075,620 shares of our
common stock were outstanding. Of these, warrants to purchase 190,457 shares of
our common stock were issued to Z-KAT, Inc., our predecessor company, in exchange
for the license of intellectual property and transfer of other assets. Pursuant
to an exchange agreement between us, Z-KAT and certain creditors of Z-KAT,
Z-KAT transferred the warrants for our common stock and a certain portion of
the transferred Series A convertible preferred stock to the creditors in
exchange for such creditors cancellation of outstanding debt.
Warrants
to purchase 272,259 shares of our common stock were purchased by purchasers of
our Series A convertible preferred stock for cash consideration of $0.03 per
share. These warrants are immediately exercisable at an exercise price of $3.00
per share and will expire ten years after the date of issuance. These warrants
have a net exercise provision under which the holder may, in lieu of payment of
the exercise price in cash, surrender the warrant and receive a net amount of
shares of common stock based on the fair market value of our common stock at
the time of exercise of the warrant after deduction of the aggregate exercise
price. These warrants also contain provisions for the adjustment of exercise
price and the aggregate number of shares issuable upon the exercise of the
warrants in the event of stock dividends, stock splits or stock combinations,
recapitalizations, reorganizations or reclassifications.
Warrants
to acquire 1,290,323 shares of our common stock, at an exercise price of $7.44
per share, were purchased by certain accredited investors in connection with
their purchase of shares of our common stock in October 2008 for cash
consideration of $0.125 per warrant. These warrants became exercisable on April
29, 2009, will be exercisable for cash or by net exercise and have a term of
seven years. Certain of the investors also received a second tranche of
warrants to purchase 322,581 shares of our common stock, at an exercise price
of $6.20 per share, that will become exercisable upon the earlier of our
exercise of a call right to require certain of the investors to purchase
additional warrants and shares of our common stock and the expiration of the
call right. In addition to the warrants purchased upon exercise of the call
right, these investors may receive an incremental number of additional warrants
with the same exercise price if certain conditions are met. The additional warrants
purchased and the incremental warrants will be immediately exercisable, if they
are issued. The warrants issued in October 2008 contain, and the additional or
incremental warrants will contain, provisions for the adjustment of exercise
price and the aggregate number of shares issuable upon the exercise of the
warrants in the event of stock dividends, stock splits or stock combinations,
recapitalizations, reorganizations or reclassifications.
- 14 -
Delaware Anti-Takeover Law and Provisions of
our Third Amended and Restated Certificate of Incorporation and Fourth Amended
and Restated Bylaws
Delaware
Anti-Takeover Law
. We are subject to Section 203 of
the Delaware General Corporation Law. Section 203 generally prohibits a public
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:
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prior to the
date of the transaction, the board of directors of the corporation approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder;
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the
interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for purposes of
determining the number of shares outstanding (a) shares owned by persons who
are directors and also officers and (b) shares owned by employee stock plans
in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer; or
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on or
subsequent to the date of the transaction, the business combination is
approved by the board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the interested
stockholder.
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Section
203 generally defines a business combination to include:
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any merger
or consolidation involving the corporation and the interested stockholder;
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any sale,
transfer, pledge or other disposition involving the interested stockholder of
10% or more of either the assets of the corporation or the aggregate market
value of all the outstanding stock of the corporation;
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subject to
exceptions, any transaction that results in the issuance or transfer by the
corporation of any stock of the corporation to the interested stockholder;
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subject to
exceptions, any transaction involving the corporation with the effect of
increasing the proportionate share of stock of the corporation; or
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the receipt
by the interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or through the
corporation.
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In
general, Section 203 defines an interested stockholder as any entity or person
beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with or controlling or
controlled by the entity or person.
Third
Amended and Restated Certificate of Incorporation and Fourth Amended and
Restated Bylaws
. Provisions of our third amended and
restated certificate of incorporation and fourth amended and restated bylaws
may delay or discourage transactions involving an actual or potential change in
our control or change in our management, including transactions in which
stockholders might otherwise receive a premium for their shares, or
transactions that our stockholders might otherwise deem to be in their best
interests. Therefore, these provisions could adversely affect the price of our
common stock. Among other things, our third amended and restated certificate of
incorporation and fourth amended and restated bylaws:
- 15 -
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permit our
board of directors to issue up to 27,000,000 shares of preferred stock, with
any rights, preferences and privileges as they may designate, including the
right to approve an acquisition or other change in our control;
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provide that
the authorized number of directors may be changed only by resolution of the
board of directors;
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provide that
all vacancies, including newly created directorships, may, except as
otherwise required by law, be filled by the affirmative vote of a majority of
directors then in office, even if less than a quorum;
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divide our
board of directors into three classes;
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require that
any action to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and not be taken by written
consent;
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provide that
stockholders seeking to present proposals before a meeting of stockholders or
to nominate candidates for election as directors at a meeting of stockholders
must provide notice in writing in a timely manner, and also specify
requirements as to the form and content of a stockholders notice;
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do not
provide for cumulative voting rights (therefore allowing the holders of a
majority of the shares of common stock entitled to vote in any election of
directors to elect all of the directors standing for election, if they should
so choose);
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provide that
special meetings of our stockholders may be called only by the board of
directors pursuant to a resolution adopted by a majority of the board of
directors; and
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provide that
stockholders will be permitted to amend our amended and restated bylaws only
upon receiving at least 66 2/3% of the votes entitled to be cast by holders
of all outstanding shares then entitled to vote generally in the election of
directors, voting together as a single class.
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Except
as otherwise provided, the amendment of any of these provisions would require
approval by the holders of at least a majority of our then outstanding common
stock, voting as a single class.
NASDAQ Global Market Listing
Our
common stock is listed on The NASDAQ Global Market under the symbol MAKO.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is BNY Mellon Shareowner
Services. The transfer agent and registrars address is 480 Washington Blvd.,
Jersey City, New Jersey, 07310.
- 16 -
DESCRIPTION OF
WARRANTS
As
of April 30, 2009, warrants exercisable for a total of 2,075,620 shares of our
common stock were outstanding. See Description of Capital Stock Warrants
for a description of the outstanding warrants.
We
may issue other warrants in the future for the purchase of debt securities,
common stock or other securities. Warrants may be issued independently or
together with debt securities or common stock offered by any prospectus
supplement and/or other offering material and may be attached to or separate
from any such offered securities. Each series of warrants will be issued under
a separate warrant agreement to be entered into between us and a bank or trust
company, as warrant agent, all as will be set forth in the prospectus
supplement and/or other offering material relating to the particular issue of
warrants. The warrant agent will act solely as our agent in connection with the
warrants and will not assume any obligation or relationship of agency or trust
for or with any holders of warrants or beneficial owners of warrants.
The
following summary of certain provisions of the warrants we may issue in the
future does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all provisions of the warrant agreements.
Reference
is made to the prospectus supplement and/or other offering material relating to
the particular issue of warrants offered pursuant to such prospectus supplement
and/or other offering material for the terms of and information relating to
such warrants, including, where applicable:
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the
designation, aggregate principal amount, currencies, denominations and terms
of the series of debt securities purchasable upon exercise of warrants to
purchase debt securities and the price at which such debt securities may be
purchased upon such exercise;
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the number
of shares of common stock purchasable upon the exercise of warrants to
purchase common stock and the price at which such number of shares of common
stock may be purchased upon such exercise;
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the
designation and number of units of other securities purchasable upon the
exercise of warrants to purchase other securities and the price at which such
number of units of such other securities may be purchased upon such exercise;
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the date on
which the right to exercise such warrants shall commence and the date on
which such right shall expire;
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U.S. federal
income tax consequences applicable to such warrants;
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the amount
of warrants outstanding as of the most recent practicable date; and
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any other
terms of such warrants.
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Warrants
will be issued in registered form only. The exercise price for warrants will be
subject to adjustment in accordance with the applicable prospectus supplement
and/or other offering material.
Each
warrant will entitle the holder thereof to purchase such principal amount of
debt securities or such number of shares of common stock or other securities at
such exercise price as shall in each case be set forth in, or calculable from,
the prospectus supplement and/or other offering material relating to the
warrants, which exercise price may be subject to adjustment upon the occurrence
of certain events as set forth in such prospectus supplement and/or other
offering material. After the close of business on the expiration date, or such
later date to which such expiration date may be extended by us, unexercised
warrants will become void. The place or places where, and the manner in which,
warrants may be exercised shall be specified in the prospectus supplement
and/or other offering material relating to such warrants.
- 17 -
Prior
to the exercise of any warrants to purchase debt securities, common stock or
other securities, holders of such warrants will not have any of the rights of
holders of debt securities, common stock or other securities, as the case may
be, purchasable upon such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, on the debt securities
purchasable upon such exercise or to enforce covenants in the applicable
indenture, or to receive payments of dividends, if any, on the common stock
purchasable upon such exercise, or to exercise any applicable right to vote.
- 18 -
DESCRIPTION OF
STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We
may issue stock purchase contracts, including contracts obligating holders to
purchase from us, and obligating us to sell to the holders, a specified number
of shares of common stock or other securities at a future date or dates, which
we refer to in this prospectus as stock purchase contracts. The price per
share of the securities and the number of shares of the securities may be fixed
at the time the stock purchase contracts are issued or may be determined by
reference to a specific formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately or as part of units
consisting of a stock purchase contract and debt securities, warrants, other
securities or debt obligations of third parties, including U.S. treasury
securities, securing the holders obligations to purchase the securities under
the stock purchase contracts, which we refer to herein as stock purchase
units. The stock purchase contracts may require holders to secure their
obligations under the stock purchase contracts in a specified manner. The stock
purchase contracts also may require us to make periodic payments to the holders
of the stock purchase units or vice versa, and those payments may be unsecured
or refunded on some basis.
The
stock purchase contracts, and, if applicable, collateral or depositary
arrangements, relating to the stock purchase contracts or stock purchase units,
will be filed with the SEC in connection with the offering of stock purchase
contracts or stock purchase units. The prospectus supplement and/or other
offering material relating to a particular issue of stock purchase contracts or
stock purchase units will describe the terms of those stock purchase contracts
or stock purchase units, including the following:
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if
applicable, a discussion of material U.S. federal income tax considerations;
and
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any other
information we think is important about the stock purchase contracts or the
stock purchase units.
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- 19 -
WHERE YOU CAN
FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. We also filed a registration statement on Form S-3,
including exhibits, under the Securities Act of 1933, as amended, or the
Securities Act, with respect to the securities offered by this prospectus. This
prospectus is a part of the registration statement, but does not contain all of
the information included in the registration statement or the exhibits. You may
read and copy the registration statement and any other document that we file at
the SECs public reference room at 100 F Street, N.E., Washington D.C. 20549.
You can call the SEC at 1-800-SEC-0330 for further information on the operation
of the public reference room. You can also find our public filings with the SEC
on the internet at a web site maintained by the SEC located at
http://www.sec.gov.
We
are incorporating by reference specified documents that we file with the SEC,
which means:
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incorporated
documents are considered part of this prospectus;
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we are
disclosing important information to you by referring you to those documents;
and
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information
we file with the SEC will automatically update and supersede information
contained in this prospectus.
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We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 (i) after the date of the registration statement on Form
S-3 filed under the Securities Act with respect to securities offered by this
prospectus and prior to the effectiveness of such registration statement and
(ii) after the date of this prospectus and before the end of the offering of
the securities pursuant to this prospectus:
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our Annual
Report on Form 10-K for the year ended December 31, 2008;
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our
Definitive Proxy Statement on Schedule 14A filed April 30, 2009;
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our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2009;
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our Current
Reports on Form 8-K filed February 13, February 20, and April 28, 2009; and
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the
description of our common stock contained in our Registration Statement on
Form 8-A, filed February 14, 2008, and any amendment or report updating that
description.
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Information
in this prospectus supersedes related information in the documents listed
above, and information in subsequently filed documents supersedes related
information in both this prospectus and the incorporated documents.
We
will promptly provide, without charge to you, upon written or oral request, a
copy of any or all of the documents incorporated by reference in this
prospectus, other than exhibits to those documents, unless the exhibits are
specifically incorporated by reference in those documents. Requests should be
directed to:
Investor Relations
MAKO Surgical Corp.
2555 Davie Road
Fort Lauderdale, FL 33317
(954) 927-2044
investorrelations@makosurgical.com
You
can also find these filings on our website at
www.makosurgical.com
. We are not
incorporating the information on our website other than these filings into this
prospectus.
- 20 -
PLAN OF
DISTRIBUTION
We
may sell our securities in any one or more of the following ways from time to
time: (i) through agents; (ii) to or through underwriters; (iii) through
brokers or dealers; (iv) directly by us to purchasers, including through a
specific bidding, auction or other process; or (v) through a combination of any
of these methods of sale. The applicable prospectus supplement and/or other
offering material will contain the terms of the transaction, name or names of
any underwriters, dealers, agents and the respective amounts of securities
underwritten or purchased by them, the initial public offering price of the
securities, and the applicable agents commission, dealers purchase price or
underwriters discount. Any dealers and agents participating in the
distribution of the securities may be deemed to be underwriters, and
compensation received by them on resale of the securities may be deemed to be
underwriting discounts.
Any
initial offering price, dealer purchase price, discount or commission may be
changed from time to time.
The
securities may be distributed from time to time in one or more transactions, at
negotiated prices, at a fixed price or fixed prices (that may be subject to
change), at market prices prevailing at the time of sale, at various prices
determined at the time of sale or at prices related to prevailing market
prices.
Offers
to purchase securities may be solicited directly by us or by agents designated
by us from time to time. Any such agent may be deemed to be an underwriter, as
that term is defined in the Securities Act, of the securities so offered and
sold.
If
underwriters are utilized in the sale of any securities in respect of which
this prospectus is being delivered, such securities will be acquired by the
underwriters for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions, at fixed public
offering prices or at varying prices determined by the underwriters at the time
of sale. Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters. If any underwriter or underwriters are utilized in the sale of
securities, unless otherwise indicated in the applicable prospectus supplement
and/or other offering material, the obligations of the underwriters are subject
to certain conditions precedent, and that the underwriters will be obligated to
purchase all such securities if any are purchased.
If
a dealer is utilized in the sale of the securities in respect of which this
prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at varying
prices to be determined by such dealer at the time of resale. Transactions
through brokers or dealers may include block trades in which brokers or dealers
will attempt to sell shares as agent but may position and resell as principal
to facilitate the transaction or in crosses, in which the same broker or dealer
acts as agent on both sides of the trade. Any such dealer may be deemed to be
an underwriter, as such term is defined in the Securities Act, of the
securities so offered and sold.
Offers
to purchase securities may be solicited directly by us and the sale thereof may
be made by us or any selling stockholder directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof.
If
so indicated in the applicable prospectus supplement and/or other offering
material, we may authorize agents and underwriters to solicit offers by certain
institutions to purchase securities from us at the public offering price set
forth in the applicable prospectus supplement and/or other offering material
pursuant to delayed delivery contracts providing for payment and delivery on
the date or dates stated in the applicable prospectus supplement and/or other
offering material. Such delayed delivery contracts will be subject only to
those conditions set forth in the applicable prospectus supplement and/or other
offering material.
Agents,
underwriters and dealers may be entitled under relevant agreements with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which such
agents, underwriters and dealers may be required to make in respect thereof.
The terms and conditions of any indemnification or contribution will be described in the applicable
prospectus supplement and/or other offering material.
- 21 -
We
may also sell shares of our common stock through various arrangements involving
mandatorily or optionally exchangeable securities, and this prospectus may be
delivered in connection with those sales.
We
may enter into derivative, sale or forward sale transactions with third
parties, or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement
and/or other offering material indicates, in connection with those
transactions, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement and/or other offering material,
including in short sale transactions and by issuing securities not covered by
this prospectus but convertible into, or exchangeable for or representing
beneficial interests in such securities covered by this prospectus, or the
return of which is derived in whole or in part from the value of such
securities. The third parties may use securities received under derivative,
sale or forward sale transactions, or securities pledged by us or borrowed from
us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those
transactions to close out any related open borrowings of stock. The third party
in such sale transactions will be an underwriter and will be identified in the
applicable prospectus supplement (or a post-effective amendment) and/or other
offering material.
Underwriters,
broker-dealers or agents may receive compensation in the form of commissions,
discounts or concessions from us. Underwriters, broker-dealers or agents may
also receive compensation from the purchasers of shares for whom they act as
agents or to whom they sell as principals, or both. Compensation as to a
particular underwriter, broker-dealer or agent might be in excess of customary
commissions and will be in amounts to be negotiated in connection with
transactions involving shares. In effecting sales, broker-dealers engaged by us
or any selling stockholder may arrange for other broker-dealers to participate
in the resales.
Each
series of securities will be a new issue and, other than the common stock,
which is listed on the NASDAQ Global Market, will have no established trading
market. We may elect to list any series of securities on an exchange, and in
the case of the common stock, on any additional exchange, but, unless otherwise
specified in the applicable prospectus supplement and/or other offering
material, we shall not be obligated to do so. No assurance can be given as to
the liquidity of the trading market for any of the securities.
Agents,
underwriters and dealers may engage in transactions with, or perform services
for us and our respective subsidiaries in the ordinary course of business.
Any
underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under
the Securities Exchange Act of 1934. Overallotment involves sales in excess of
the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security 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 cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time. An underwriter may carry out these transactions on the
NASDAQ Global Market, in the over-the-counter market or otherwise.
The
place and time of delivery for securities will be set forth in the accompanying
prospectus supplement and/or other offering material for such securities.
- 22 -
LEGAL MATTERS
The
validity of the securities offered by this prospectus will be passed upon for
us by Foley & Lardner LLP. The validity of the securities offered by this
prospectus will be passed upon for any underwriters or agents by counsel named
in the applicable prospectus supplement. The opinions of Foley & Lardner
LLP and counsel for any underwriters or agents may be conditioned upon and may
be subject to assumptions regarding future action required to be taken by us
and any underwriters, dealers or agents in connection with the issuance of any
securities. The opinions of Foley & Lardner LLP and counsel for any
underwriters or agents may be subject to other conditions and assumptions, as
indicated in the prospectus supplement.
EXPERTS
The
financial statements of MAKO Surgical Corp. appearing in MAKO Surgical Corp.s
Annual Report on Form 10-K for the year ended December 31, 2008 have been
audited by Ernst & Young LLP, an independent registered public accounting
firm, as stated in their report thereon, included therein, and incorporated
herein by reference. Such financial statements are, and audited financial
statements to be included in subsequently filed documents will be, incorporated
herein by reference in reliance upon the report of Ernst & Young LLP
pertaining to such financial statements (to the extent covered by consents
filed with the SEC) given on the authority of such firm as experts in
accounting and auditing.
- 23 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The
aggregate estimated expenses, other than underwriting discounts and
commissions, in connection with the sale of the securities being registered
hereby are currently anticipated to be as follows (all amounts are estimated
except the Securities and Exchange Commission registration fee). All expenses
of the offering will be paid by MAKO Surgical Corp.
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Amount
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Securities and Exchange Commission
registration fee
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$
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2,790
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Printing expenses
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40,000
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Legal fees and expenses
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125,000
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Accounting fees and expenses
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10,000
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Miscellaneous (including any applicable
listing fees, rating agency fees,
trustee and transfer agents fees and
expenses)
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7,210
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Total
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$
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185,000
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Item 15.
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Indemnification of Directors and Officers.
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The
Registrant is incorporated under the laws of the State of Delaware. Section 145
of the Delaware General Corporation Law provides that a Delaware corporation
may indemnify any persons who are, or are threatened to be made, parties 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 such person 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
corporations best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
illegal. A Delaware corporation may indemnify any persons who are, or are
threatened to be made, a party to any threatened, pending or completed action
or suit by or in the right of the corporation by reason of the fact that such
person was 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. The indemnity may include
expenses (including attorneys fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit
provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporations best interests except
that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Expenses incurred by
any officer or director in defending any such action, suit or proceeding in
advance of its final disposition shall be paid by us upon 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 that such director or officer
is not entitled to be indemnified by us. 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 which
such officer or director has actually and reasonably incurred. The Registrants
third amended and restated certificate of incorporation and fourth amended and
restated bylaws provide for the indemnification of its directors and officers
to the fullest extent permitted under the Delaware General Corporation Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to
provide in its certificate of incorporation 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:
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transaction
from which the director derives an improper personal benefit,
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act or
omission not in good faith or that involves intentional misconduct or a
knowing violation of law,
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unlawful
payment of dividends or redemption of shares, or
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breach of a
directors duty of loyalty to the corporation or its stockholders.
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The
Registrants third amended and restated certificate of incorporation includes
such a provision.
Section
174 of the Delaware General Corporation Law provides, among other things, that
a director, who willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption, may be held liable for
such actions. A director who was either absent when the unlawful actions were
approved, or dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered in the books containing minutes of the
meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful acts.
As
permitted by the Delaware General Corporation Law, the Registrant has entered
into indemnity agreements with each of its directors and executive officers
that require the Registrant to indemnify such persons against any and all
expenses (including attorneys fees), witness fees, damages, judgments, fines,
settlements and other amounts incurred (including expenses of a derivative
action) in connection with any action, suit or proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was a director, an officer or an employee of the
Registrant or any of its affiliated enterprises, provided that such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the Registrants best interests and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At
present, there is no pending litigation or proceeding involving any of the
Registrants directors or executive officers as to which indemnification is
required or permitted, and the Registrant is not aware of any threatened
litigation or proceeding that may result in a claim for indemnification.
The
Registrant has an insurance policy covering its officers and directors with
respect to certain liabilities, including liabilities arising under the
Securities Act or otherwise.
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Item 16.
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Exhibits and Financial Statement Schedules.
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The
exhibits listed in the accompanying Exhibit Index are filed or incorporated by
reference as part of this Registration Statement.
The
undersigned Registrant hereby undertakes:
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(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) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
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(ii) To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission (the
Commission) pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement; and
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(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
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provided, however
, that paragraphs (i), (ii)
and (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 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) That,
for the purpose of determining any liability under the Securities Act of
1933, 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) 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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(5) That,
for the purpose of determining liability under the Securities Act of 1933 to
any purchaser:
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(i) If
the Registrant is relying on Rule 430B:
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(A) 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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(B) 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
the prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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 effective date, 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 effective date.
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(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used
after effectiveness.
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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(6) 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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(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating
to the offering required to be filed pursuant to Rule 424;
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(ii) 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;
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(iii) 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
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(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
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The
undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of its annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plans annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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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Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 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 issue 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 and
will be governed by the final adjudication of such issue.
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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 in accordance with the rules
and regulations prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act.
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II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Fort Lauderdale, State of Florida, on this 15th day of May, 2009.
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MAKO
SURGICAL CORP.
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By:
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/s/ Maurice
R. Ferré
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Maurice R.
Ferré, M.D.
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President, Chief Executive Officer and
Chairman of the Board
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated below on
May 15, 2009. Each person whose signature appears below constitutes and
appoints Maurice R. Ferré, Fritz L. LaPorte and Menashe R. Frank, and each of
them individually, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and revocation, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and any additional registration statement to be filed pursuant to
Rule 462(b) under the Securities Act of 1933, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, may lawfully do or cause to be done by virtue hereof.
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Signature
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Title
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/s/ Maurice
R. Ferré
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President,
Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)
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Maurice R.
Ferré, M.D.
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/s/ Fritz L.
LaPorte
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Senior Vice
President of Finance and Administration, Chief
Financial Officer and Treasurer (Principal Financial and
Accounting Officer)
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Fritz L.
LaPorte
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/s/ S. Morry
Blumenfeld
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Director
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S. Morry
Blumenfeld, Ph.D.
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/s/ Gerald
A. Brunk
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Director
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Gerald A.
Brunk
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/s/ Marcelo
G. Chao
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Director
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Marcelo G.
Chao
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/s/
Christopher C. Dewey
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Director
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Christopher
C. Dewey
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/s/ Charles
W. Federico
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Director
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Charles W.
Federico
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S-1
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Signature
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Title
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/s/ John G.
Freund
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Director
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John G.
Freund, M.D.
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/s/ Frederic
H. Moll
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Director
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Frederic H.
Moll, M.D.
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/s/ William
D. Pruitt
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Director
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William D.
Pruitt
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/s/ John J.
Savarese
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Director
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John J.
Savarese, M.D.
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S-2
EXHIBIT INDEX
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Exhibit
Number
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Document Description
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(1)
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Form of
Underwriting Agreement.*
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(4.1)
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Third
Amended and Restated Certificate of Incorporation of Mako Surgical Corp.,
dated February 20, 2008. (1)
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(4.2)
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Fourth
Amended and Restated Bylaws of Mako Surgical Corp. effective October 31,
2008. (2)
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(4.3)
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Form of
Indenture.
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(4.4)
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Form of Debt
Securities.*
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(4.5)
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Form of
Warrant.*
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(4.6)
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Form of
Warrant Agreement.*
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(4.7)
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Form of
Stock Purchase Contract.*
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(5)
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Opinion of
Foley & Lardner LLP (including consent of counsel).
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(12)
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Computation
of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividend and Accretion Requirements.
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(23.1)
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Consent of
Foley & Lardner LLP (filed as part of Exhibit (5)).
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(23.2)
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Consent of
Ernst & Young LLP.
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(24)
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Powers of
Attorney (included on the signature page to this Registration Statement).
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(25)
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Form T-1
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939.**
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*
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To be filed
by amendment or under subsequent Current Report on Form 8-K.
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**
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To be filed
in accordance with the requirements of Section 305(b)(2) of the Trust
Indenture Act of 1939 and Rule 5b-3 thereunder.
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(1)
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Incorporated
by reference to Exhibit 3.1 to the Registrants Annual Report on Form 10-K
for the year ended December 31, 2007 filed with the Securities and Exchange
Commission (the SEC) on March 31, 2008
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(2)
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Incorporated
by reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K
filed with the SEC on October 30, 2008
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Documents
incorporated by reference to filings made by MAKO Surgical Corp. under the
Securities Exchange Act of 1934 are under SEC File No. 001-33966.
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