(5) Dr. Moll has served as one our directors since August 2007.
Includes 19,344 shares that Dr. Moll has the right to acquire through the
exercise of warrants and 6,049 shares that Dr. Moll has the right to acquire
through the exercise of vested options.
(6) Dr. Ferré is our founding President, Chief
Executive Officer and current Chairman
of our board of directors. Consists of 741,075 shares of restricted
common stock (of which 186,170 shares will be unvested as of July 10,
2009) issued to Dr. Ferré in connection with his employment,
17,065 shares of unrestricted common stock purchased by Dr. Ferré,
49,504 shares of restricted common stock held by MMF Holdings, LLC, an entity
owned by Dr. Ferré’s parents, 96,236 shares that Dr. Ferré has the right to
acquire through the exercise of vested options and 5,631 shares that
Dr. Ferré has the right to acquire through the exercise of warrants. Of
his 554,905 vested shares of restricted common stock, Dr. Ferré has pledged
125,000 shares to a third party lender as collateral to secure any amounts that
may become outstanding under a personal loan. Subsequent to the date of this
table, on May 22, 2009, our board of directors approved the grant of 100,000
shares of restricted common stock to Dr. Ferré (all of which will be unvested
as of July 10, 2009). On May 22, 2009, Dr. Ferré surrendered 40,211 shares of
common stock to the Company in order for the Company to pay, on Dr. Ferré’s
behalf, the withholding taxes associated with the compensation resulting from
the prior vesting of his restricted common stock.
(7) Gerald A.
Brunk, who has served as one of our directors since October 2006, is Senior
Vice President/Managing Director of Lumira Capital Corp. The general
partner of Lumira Capital I Limited Partnership (“LC I”) is Lumira Capital I
(GP) Inc. The general partner of Lumira Capital I Quebec Limited
Partnership (“LCIQ”) is Lumira Capital I (QGP) Inc. The general partner of
MLII Co-Investment Fund NC Limited Partnership (“MLII.NC”) MLII (NCGP) Inc.
Lumira Capital Management Corp. (“Lumira Management”), a subsidiary of
Lumira Capital Corp., may be deemed to share voting and investment power
over the shares held by LC I pursuant to a management agreement with LC I.
Lumira Management also provides services to each of LCIQ and MLII.NC.
The directors of Lumira Capital Corp. are Michael Burns, Kenneth Horton,
James Oborne and Peter van der Velden. The directors
of Lumira Management, Lumira Capital I (GP) Inc., and MLII
(NCGP) Inc. are Stephen Cummings and Peter van der Velden. The directors
of Lumira Capital I (QGP) Inc. are Bernard Coupal, Murray Ducharme,
Maurice Forget, Jean Page and Peter van der Velden. Lumira Capital I (GP)
Inc., Lumira Capital I (QGP) Inc., MLII (NCGP) Inc. and each of the
individuals may be deemed to share voting and investment power over these
shares. Lumira Capital I (GP) Inc., Lumira Capital I (QGP) Inc., MLII (NCGP)
Inc., Lumira Management, Lumira Capital Corp., Mr. Brunk and each of the other
individuals disclaim beneficial ownership of such shares, except to the extent
of its, his or her pecuniary interest.
(8) Marcelo G. Chao, who has served as one of our
directors since February 2007, is a Managing Director of The Exxel Group, and
affiliate of MK Investment Company (“MK Investment”). The directors of MK
Investment are Francisco Beramendi, Diego Muñoz and Alfredo Arocena.
Mr. Chao and the directors of MK Investment may be deemed to share voting
and investment power over the shares held by this entity. Each of these
individuals disclaims beneficial ownership of such shares, except to the extent
of his or her pecuniary interest.
(9) S. Morry Blumenfeld, Ph.D., who has served as one of
our directors since July 2005, is the founder of MediTech Advisors LLC and
Meditech Advisors Management LLC, a member of Ziegler MediTech Partners LLC,
which is the sole general partner of Ziegler MediTech Equity Partners LP. The
partners of MediTech Advisors LLC are Eitan Machover, Samuel Cubac, Grosvenor
LLC and Allandale Ltd. The members of Grosvenor LLC are Dr. Blumenfeld and
certain of his family members. The general partner of Ziegler MediTech Equity
Partners LP is Ziegler MediTech Partners, LLC. The board of managers of Ziegler
MediTech Partners LLC consists of Dr. Blumenfeld, Eitan Machover, Sam
Cubac, S. Charles O’Meara, Donald I. Grande and Thomas S. Ross. The partners of
MediTech Advisors LLC and Dr. Blumenfeld and the other directors of
Ziegler MediTech Partners LLC may be deemed to share voting and investment
power over the shares held by MediTech Advisors LLC and Ziegler MediTech Equity
Partners LP. Each of these individuals disclaims beneficial ownership of such
shares, except to the extent of his or her pecuniary interest.
(10) Does not
include 812,377 shares of common stock held by Aperture Capital II, L.P.
Aperture Venture Partners LLC is the general partner of Aperture Capital II,
L.P. and Aperture Capital III, L.P. Paul E. Tierney, Jr., Thomas P. Cooper,
Eric H. Sillman and Matthew S. Tierney are the members of Aperture Venture
Partners LLC, and may be deemed to share voting and investment power over the
shares held by each of Aperture Capital II, L.P. and Aperture Capital III, L.P.
Each of these individuals disclaims beneficial ownership of such shares, except
to the extent of his pecuniary interest.
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(11) Alta Partners Management VIII, LLC (“APM
VIII”), the general partner of Alta Partners VIII, L.P. (“AP VIII”), and Daniel
Janney, Guy Nohra and Farah Champsi, the managing directors of APM VIII, may be
deemed to share voting and investment power over the shares held by AP VIII.
APM VIII and each of its managing directors disclaim beneficial ownership of
the shares, except to the extent of its, his or her pecuniary interest.
(12) John
Savarese, M.D., who has served as one of our directors since October 2008,
Daniel K. Turner III, Howard D. Palefsky and Manish Chapekar are the managers
of Montreux Equity Management IV, LLC (“MEM IV”), the sole general partner of
each of Montreux Equity Partners IV, L.P. and Montreux IV Associates IV, L.L.C.
and may be deemed to share voting and investment power over the shares held by
each of Montreux Equity Partners IV, L.P. and Montreux IV Associates, L.L.C.
Each of these individuals disclaims beneficial ownership of such shares, except
to the extent of his pecuniary interest.
(13) John
Freund, M.D., who has served as one of our directors since October 2008, is a
Managing Director of Skyline Venture Management V, LLC, the general partner of
Skyline Venture Partners V, L.P., and may be deemed to share voting and
investment power over the shares held by Skyline Venture Partners V, L.P. Dr.
Freund disclaims beneficial ownership of such shares, except to the extent of
his pecuniary interest.
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P
LAN OF DISTRIBUTION
The
selling stockholders may, from time to time, sell any or all of their shares of
common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
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ordinary brokerage
transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the
broker-dealer will attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the transaction;
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purchases by a
broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange
distribution in accordance with the rules of the applicable exchange;
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privately negotiated
transactions;
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short sales;
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broker-dealers may
agree with the selling stockholders to sell a specified number of such shares
at a stipulated price per share;
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a combination of any
such methods of sale; and
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any other method
permitted pursuant to applicable law.
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The
selling stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended, or the Securities Act, if available, rather than under
this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved. Any profits on the
resale of shares of common stock by a broker-dealer acting as principal might
be deemed to be underwriting discounts or commissions under the Securities Act.
Discounts, concessions, commissions and similar selling expenses, if any,
attributable to the sale of shares will be borne by a selling stockholder. The
selling stockholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares if liabilities
are imposed on that person under the Securities Act.
The
selling stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of common stock from time to time under
this prospectus after we have filed a post-effective amendment or supplement to
this prospectus under the Securities Act supplementing or amending the list of
selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
The
selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus
and may sell the shares of common stock from time to time under this prospectus
after we have filed a post-effective amendment or supplement to this prospectus
under the Securities Act supplementing or amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
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The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares of common stock may be deemed to be “underwriters” within
the meaning of the Securities Act in connection with such sales. In such event,
any commissions received by such broker-dealers or agents and any profit on the
resale of the shares of common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
We
are required to pay all fees and expenses incident to the registration of the
shares of common stock. We have agreed to indemnify the selling stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of common stock, nor is there
an underwriter or coordinating broker acting in connection with a proposed sale
of shares of common stock by any selling stockholder. If we are notified by any
selling stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares of common stock, if required, we will file
a supplement to this prospectus. If the selling stockholders use this
prospectus for any sale of the shares of common stock, they will be subject to
the prospectus delivery requirements of the Securities Act.
The
anti-manipulation rules of Regulation M under the Securities Exchange Act of
1934 may apply to sales of our common stock and activities of the selling
stockholders.
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D
ESCRIPTION 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.
The
following is a summary of the rights of our common stock and preferred 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. See “Where You Can
Find More Information.”
Common
Stock
Outstanding
Shares and Voting Rights
. As of May 11, 2009, 25,031,152
shares of our common stock were outstanding. 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 and other rights of the holders of common
stock. We have no current plans to issue any shares of preferred stock.
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Warrants
As
of May 11, 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, are 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.
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:
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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 stockholder’s 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 registrar’s address is 480 Washington Blvd.,
Jersey City, New Jersey, 07310.
L
EGAL MATTERS
Foley
& Lardner LLP will pass upon the validity of the common stock being offered
by this prospectus.
E
XPERTS
The
financial statements of MAKO Surgical Corp. appearing in MAKO Surgical Corp.’s
Annual Report (Form 10-K) for the year ended December 31, 2008, have been
audited by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their report thereon, included therein, and incorporated
herein by reference. Such financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
W
HERE YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. We have also filed an initial post-effective
amendment on Form S-3, including exhibits, to our registration statement on
Form S-1 under the Securities Act with respect to the shares of common stock
offered by this prospectus. This prospectus is a part of the post-effective
amendment, but does not contain all of the information included in the
post-effective amendment or the exhibits. Some items are omitted in accordance
with the rules and regulations of the SEC. You may read and copy the registration
statement and any other document that we file at the SEC’s public reference
room at 100 F Street, N.E., Washington DC, 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; and
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we are disclosing important information to you by
referring you to those documents.
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We
incorporate by reference the documents listed below:
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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,
2009, February 20, 2009, April 28, 2009, and May 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
amendments or reports filed for the purpose of updating such description.
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All documents we file with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this initial post-effective amendment on Form S-3 to our
registration statement on Form S-1, of which this prospectus is a part, and
prior to the effectiveness of such post-effective amendment, as well as
subsequent to the date of this prospectus and prior to the termination of this
offering, shall be deemed to be incorporated by reference into this prospectus
and to be part of this prospectus from the date of the filing of the documents
with the SEC.
We
will provide to each person to whom a prospectus is delivered a copy of any of
the filings incorporated by reference into this prospectus, at no cost, upon
written or oral request directed to us at the following address or telephone
number:
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Investor Relations
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MAKO Surgical Corp.
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2555 Davie Road
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Fort Lauderdale, FL 33317
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(954) 927-2044
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investorrelations@makosurgical.com
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You can also find these filings on our website at
www.makosurgical.com. However, we are not incorporating the information on our
website other than these filings into this prospectus.
21
12,980,951 Shares of Common Stock
MAKO
Surgical Corp.
Mako Surgical Corp. (MM) (NASDAQ:MAKO)
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