Table of Contents
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. As of May 7, 2012, 42,572,138 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.
Registration
Rights.
On May 7, 2012, we entered into a facility
agreement with affiliates of Deerfield Management Company, L.P., or Deerfield,
pursuant to which Deerfield agreed to loan us up to $50 million, subject to the
terms and conditions set forth in the facility agreement. We have the
flexibility, but are not required to, draw down on the facility agreement in
$10 million increments at any time until May 15, 2013. In connection with the
execution of the facility agreement, on May 7, 2012, we issued to Deerfield
warrants to purchase 275,000 shares of our common stock at an exercise price
equal to a 20% premium to the mean closing price of our common stock over the
20 trading days beginning on May 8, 2012. As noted above, we have the right to
draw down on the facility agreement one or more cash disbursements in the
minimum amount of $10 million per disbursement. Each $10 million disbursement
will be accompanied by the issuance to Deerfield of warrants to purchase
140,000 shares of our common stock, at an exercise price equal to a 20% premium
to the mean closing price of our common stock over the five trading days
following receipt by Deerfield of the draw notice. If we, in our discretion,
elect to draw down the entire $50 million under the facility agreement, we will
have issued warrants to purchase a total of 975,000 shares of our common stock.
The warrants expire seven years from their issuance.
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We
have entered into a registration rights agreement with Deerfield pursuant to
which we agreed to file a shelf registration statement for the resale of the
shares of our common stock underlying the Deerfield warrants, which obligation
we have satisfied with the filing of this registration statement, and to keep
such resale registration statement effective until Deerfield has completed the
sales of the shares of our common stock under the registration statement or its
shares have been distributed pursuant to Rule 144. The registration rights
agreement also provides Deerfield with piggyback registration rights if we have
not kept this or another shelf registration statement relating to the shares
underlying the Deerfield warrants effective.
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.
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 May 7, 2012, warrants exercisable for a total of 1,327,770 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 other assets to
the creditors in exchange for such creditors’ cancellation of outstanding debt.
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Warrants
to purchase 272,259 shares of our common stock were purchased by purchasers of
equity in a prior round of financing for cash consideration of $0.03 per share.
These warrants were immediately exercisable at an exercise price of $3.00 per
share and will expire in December 2014. 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 the 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. Of the aggregate 462,716 warrants issued
to Z-KAT and the purchasers described in this paragraph, warrants exercisable
for 310,872 shares of our common stock were outstanding as of May 7, 2012.
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. As of
May 7, 2012, 598,741 warrants were outstanding. 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 became exercisable on
December 31, 2009. All of the warrants described in this paragraph contain
provisions for the adjustment of the 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. As of May 7, 2012, 143,157 warrants were
outstanding.
Warrants
to acquire 275,000 shares of our common stock, at an exercise price equal to a
20% premium to the mean closing price of our common stock over the 20 trading
days beginning on May 8, 2012, were issued to Deerfield in connection with our
entry into a facility agreement with Deerfield pursuant to which Deerfield
agreed to loan us up to $50.0 million, subject to the terms and conditions set
forth in the facility agreement. These warrants will become exercisable on June 6, 2012,
are exercisable for cash or by net exercise and have a term of seven years.
These warrants also contain provisions for the adjustment of the 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. As of May 7, 2012,
275,000 warrants were outstanding.
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 compliance with applicable requirements;
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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 Select Market Listing
Our
common stock is listed on The Nasdaq Global Select Market under the symbol
“MAKO.”
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer
and Trust Company. The transfer agent and registrar’s address is 17 Battery
Place, 8th Floor, New York, New York 10004.
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D
ESCRIPTION OF WARRANTS
As
of May 7, 2012, warrants exercisable for a total of 1,327,770 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.
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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.
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D
ESCRIPTION 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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If we issue stock purchase units where debt
obligations of third parties are used as security for your obligations to
purchase or sell shares of common stock or preferred stock or other securities,
we will include in the prospectus supplement and/or other offering material
relating to the offering information about the issuer of the debt securities.
Specifically, if the issuer has a class of securities registered under the
Exchange Act, and is either eligible to register its securities on
Form S-3 under the Securities Act, or meets the listing criteria to be
listed on a national securities exchange, we will include a brief description
of the business of the issuer, the market price of its securities and how you
can obtain more information about the issuer. If the issuer does not meet the
criteria described in the previous sentence, we will include substantially all
of the information that would be required if the issuer were making a public
offering of the debt securities.
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SE
LLING
STOCKHOLDERS
We
may register shares of common stock covered by this prospectus for re-offers
and resales by any selling stockholders to be named in a prospectus supplement.
We may register these shares to permit selling stockholders to resell their
shares when they deem appropriate. A selling stockholder may resell all, a
portion or none of such stockholder’s shares at any time and from time to time.
Selling stockholders may also sell, transfer or otherwise dispose of some or
all of their shares of our common stock in transactions exempt from the
registration requirements of the Securities Act. We do not know when or in what
amounts the selling stockholders may offer shares for sale under this
prospectus and any prospectus supplement. We will not receive any proceeds from
any sale of shares by a selling stockholder under this prospectus and any
prospectus supplement. We may pay all expenses incurred with respect to the
registration of the shares of common stock owned by the selling stockholders, other
than underwriting fees, discounts or commissions which will be borne by the
selling stockholders. We will provide you with a prospectus supplement naming
the selling stockholders, the amount of shares to be registered and sold and
any other terms of the shares of common stock being sold by each selling
stockholder.
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W
HERE 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 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 SEC’s 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 Exchange Act
(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, 2011;
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our Definitive Proxy Statement on Schedule 14A filed
April 27, 2012;
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our Quarterly Reports on Form 10-Q for the quarter
ended March 31, 2012;
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our Current Reports on Form 8-K (excluding any
portions thereof that are deemed to be furnished and not filed) filed January
31, 2012, February 27, 2012 and May 7, 2012; 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 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
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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.
P
LAN OF DISTRIBUTION
We
may sell our securities, and any selling stockholder may sell shares of
our common stock, in any one or more of the following ways from time to time:
(1) through agents; (2) to or through underwriters; (3) through
brokers or dealers; (4) directly by us or any selling stockholders to
purchasers, including through a specific bidding, auction or other process; or
(5) through a combination of any of these methods of sale. The applicable
prospectus supplement and/or other offering materials 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 agent’s commission,
dealer’s purchase price or underwriter’s discount. Any selling stockholders,
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. Additionally, because
selling stockholders may be deemed to be “underwriters” within the meaning of
Section 2(11) of the Securities Act, selling stockholders may be subject to the
prospectus delivery requirements of the Securities Act.
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 any selling
stockholder 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 the underwriters will be obligated to
purchase all such securities if they purchase any of them.
If
a dealer is utilized in the sale of the securities in respect of which this
prospectus is delivered, we will sell such securities, and any selling
stockholder will sell shares of our common stock 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 cross trades, 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. In addition, any selling stockholder may sell
shares of our common stock in ordinary brokerage transactions or in
transactions in which a broker solicits purchases.
Offers
to purchase securities may be solicited directly by us or any selling
stockholder 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 of 1933 with respect to
any resale thereof.
Any
selling stockholders may also resell all or a portion of their shares of our
common stock in transactions exempt from the registration requirements of the
Securities Act in reliance upon Rule 144 under the Securities Act
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provided they meet the criteria and conform to the
requirements of that rule, Section 4(1) of the Securities Act or other
applicable exemptions, regardless of whether the securities are covered by the
registration statement of which this prospectus forms a part.
Agents,
underwriters and dealers may be entitled under relevant agreements with us or
any selling stockholder 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.
We
may pay all expenses incurred with respect to the registration of the shares of
common stock owned by any selling stockholders, other than underwriting fees,
discounts or commissions, which will be borne by the selling stockholders. We
or any selling stockholder 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
or any selling stockholder 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, exchangeable
for or representing beneficial interests in 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
any selling stockholder or borrowed from us, any selling stockholder or others
to settle those sales or to close out any related open borrowings of stock, and
may use securities received from us or any selling stockholder 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.
Additionally,
any selling stockholder may engage in hedging transactions with broker-dealers
in connection with distributions of shares or otherwise. In those transactions,
broker-dealers may engage in short sales of shares in the course of hedging the
positions they assume with such selling stockholder. Any selling stockholder
also may sell shares short and redeliver shares to close out such short
positions. Any selling stockholder may also enter into option or other transactions
with broker-dealers which require the delivery of shares to the broker-dealer.
The broker-dealer may then resell or otherwise transfer such shares pursuant to
this prospectus. Any selling stockholder also may loan or pledge shares, and
the borrower or pledgee may sell or otherwise transfer the shares so loaned or
pledged pursuant to this prospectus. Such borrower or pledgee also may transfer
those shares to investors in our securities or the selling stockholder’s
securities or in connection with the offering of other securities not covered
by this prospectus.
Underwriters,
broker-dealers or agents may receive compensation in the form of commissions,
discounts or concessions from us or any selling stockholder. 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 will be in
amounts to be negotiated in connection with transactions involving shares and
might be in excess of customary commissions. In effecting sales, broker-dealers
engaged by us or any selling stockholder may arrange for other broker-dealers
to participate in the resales.
Any
securities offered other than common stock will be a new issue and, other than
the common stock, which is listed on The Nasdaq Global Select 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.
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Agents,
underwriters and dealers may engage in transactions with, or perform services
for, us or our subsidiaries or any selling stockholder 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 Exchange Act. 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 Select
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.
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Table of Contents
L
EGAL 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.
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, 2011, and the
effectiveness of MAKO Surgical Corp.’s internal control over financial
reporting as of December 31, 2011, have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in their reports
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 in reliance upon the reports of
Ernst & Young LLP pertaining to such financial statements and the
effectiveness of our internal control over financial reporting as of the
respective dates (to the extent covered by consents filed with the Securities and
Exchange Commission) given on the authority of such firm as experts in
accounting and auditing.
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Table of Contents
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 SEC registration fee). All expenses of the offering will be paid by
MAKO Surgical Corp.
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Amount
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SEC registration fee
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(1
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Printing expenses
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(2
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Legal fees and expenses
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(2
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Accounting fees and expenses
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(2
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Miscellaneous
(including any applicable listing fees, rating agency fees, trustee and
transfer agent’s fees and expenses)
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(2
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Total
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(2
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(1)
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Deferred in accordance with
Rules 456(b) and 457(r) under the Securities Act.
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(2)
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An estimate of the aggregate
expenses in connection with the sale and distribution of the securities being
offered will be included in the applicable prospectus supplement.
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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
corporation’s best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
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 corporation’s 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 Registrant’s
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.
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Table of Contents
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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•
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transaction from which the director derives an
improper personal benefit,
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•
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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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•
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unlawful payment of dividends or redemption of
shares, or
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•
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breach of a director’s duty of loyalty to the
corporation or its stockholders.
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The
Registrant’s 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 Registrant’s 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
Registrant’s 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
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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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(4) 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
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II-3
Table of Contents
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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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(5) 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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(iii) 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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(iv) 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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(v) 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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(vi) 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 plan’s 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.
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.
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.
II-4
Table of Contents
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 9
th
day of May, 2012.
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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 9, 2012. 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/ 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/ 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/ Richard R. Pettingill
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Director
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Richard R. Pettingill
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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-1
Table of Contents
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. (3)
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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 Warrant to purchase shares of common stock
of MAKO Surgical Corp. (4)
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(4.8)
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Facility Agreement by and among the Registrant,
Deerfield Private Design Fund II, L.P., and Deerfield Private Design
International II, L.P., dated May 7, 2012. (5)
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(4.9)
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Form of Stock Purchase Contract.*
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(4.10)
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Registration Rights Agreement by and among
Registrant, Deerfield Private Design Fund II, L.P., and Deerfield Private
Design International II, L.P., dated May 7, 2012. (6)
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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 Independent Registered Public Accounting
Firm.
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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
Registrant’s 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
Registrant’s Current Report on Form 8-K filed with the SEC on October 30,
2008
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(3)
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Incorporated by reference to Exhibit 4.3 to the
Registrant’s Registration Statement on Form S-3 (Reg. No. 333-169464) filed
with the SEC on September 17, 2010.
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(4)
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Incorporated by reference to Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K filed with the SEC on May 7, 2012.
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(5)
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Incorporated by reference to Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K filed with the SEC on May 7, 2012.
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(6)
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Incorporated by reference to Exhibit 10.2 to the
Registrant’s Current Report on Form 8-K filed with the SEC on May 7, 2012.
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Documents incorporated by reference to filings made
by MAKO Surgical Corp. under the Exchange Act are under SEC File No.
001-33966.
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