Table of Contents
The information in this preliminary prospectus supplement
is not complete and may be changed. This preliminary prospectus supplement and the accompanying prospectus are not an offer to
sell these securities and are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not
permitted.
Filed Pursuant to Rule 424(b)(5)
Registration No. 333-181277
SUBJECT
TO COMPLETION
PRELIMINARY PROSPECTUS SUPPLEMENT,
DATED NOVEMBER 13, 2012
PROSPECTUS SUPPLEMENT
To Prospectus dated May 9, 2012
Shares
MAKO SURGICAL CORP.
Common Stock
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MAKO Surgical Corp. is offering shares.
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Trading symbol: NASDAQ Global Select Market – MAKO
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The last reported sale price of our common stock on November [●], 2012 was $[●] per share.
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This investment involves risk. See “Risk Factors”
beginning on page S-3 in this prospectus supplement.
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Per Share
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Total
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Public offering price
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$
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$
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Underwriting discount
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$
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$
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Proceeds, before expenses, to MAKO Surgical Corp.
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$
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$
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The underwriter has a 30-day option to purchase up to
additional shares of our common stock from us at a price of $ per share to cover over-allotments,
if any.
Christopher Dewey, a director of MAKO Surgical
Corp., has indicated an interest in purchasing an aggregate of approximately 25,000 shares of common stock in this offering.
Because this indication of interest is not a binding agreement or commitment to purchase. Mr. Dewey may elect not to
purchase any shares in this offering, or MAKO Surgical Corp.’s underwriter may elect not to sell any shares in this
offering to Mr. Dewey.
The shares will be ready for delivery on or about ,
2012.
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Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus supplement and the accompanying
prospectus are truthful or complete. Any representation to the contrary is a criminal offense.
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Piper Jaffray
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The date of this prospectus supplement is November
, 2012.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
SUPPLEMENT
This prospectus incorporates by reference
important information. You may obtain the information incorporated by reference without charge by following the instructions under
“Where You Can Find More Information” appearing below before deciding to invest in our shares.
This document is in two parts. The first
part is this prospectus supplement, which describes the terms of this offering of common stock and related matters. The second
part is the accompanying prospectus, which gives more general information, some of which may not apply to this offering of common
stock. To the extent the information
contained in this prospectus supplement
differs or varies from the information contained in the accompanying prospectus or any document incorporated by reference, the
information in this prospectus supplement shall control.
All references in this prospectus supplement
and the accompanying prospectus to “MAKO Surgical,” “MAKO,” “the Company,” “we,”
“us,” “our,” or similar references refer to MAKO Surgical Corp., except where the context otherwise requires
or as otherwise indicated.
You should rely only on the information
contained or incorporated by reference in this prospectus supplement, the accompanying prospectus and any free-writing prospectus
that we authorize to be distributed to you. We have not, and the underwriter has not, authorized anyone to provide you with different
information. This prospectus supplement and the accompanying prospectus are not an offer to sell, nor are they seeking an offer
to buy, these securities in any state where the offer or sale is not permitted. The information in this prospectus supplement and
the accompanying prospectus is complete and accurate as of the date the information is presented, but the information may have
changed since that date.
We have received or applied for trademark
registration of and/or claim trademark rights, including in the following marks that appear in this prospectus: “MAKOplasty®,”
“RIO®,” and “RESTORIS®,” as well as in the MAKO Surgical Corp. “MAKO” logo, whether
standing alone or in connection with the words “MAKO Surgical Corp.” All other trademarks, trade names and service
marks appearing in this prospectus supplement and the accompanying prospectus are the property of their respective owners.
Prospectus
Supplement Summary
The following summary is qualified in
its entirety by, and should be read together with, the more detailed information and financial statements and related notes thereto
appearing elsewhere or incorporated by reference in this prospectus supplement and the accompanying prospectus. Before you decide
to invest in our common stock, you should read the entire prospectus supplement and the accompanying prospectus carefully, including
the risk factors and the financial statements and related notes incorporated by reference in this prospectus supplement and the
accompanying prospectus.
Overview
We are an emerging medical device company that markets our RIO Robotic
Arm Interactive Orthopedic system, joint specific applications for the knee and hip, and proprietary RESTORIS implants for orthopedic
procedures. We offer MAKOplasty, an innovative, restorative surgical solution that enables orthopedic surgeons to consistently,
reproducibly and precisely treat patient specific osteoarthritic disease.
Corporate Information
We were incorporated in Delaware in November 2004 under the name
MAKO Surgical Corp. The address of our principal executive office is 2555 Davie Road, Fort Lauderdale, Florida 33317, and our telephone
number is (954) 927-2044. Our website address is www.makosurgical.com. We do not incorporate the information on our website into
this prospectus supplement and the accompanying prospectus, and you should not consider it part of this prospectus supplement and
the accompanying prospectus.
Market Data
A critical component of our sales and marketing efforts is the training
of surgeons and hospital staff to perform MAKOplasty. As of September 30, 2012, we had trained over 900 surgeons on the use of
the RIO system to perform MAKOplasty.
Compelling demographic trends, such as the growing aging and more
active population and rising obesity rates, are expected to be key drivers in the continued growth of osteoarthritis occurrence.
In 1995, there were approximately 55 million people over the age of 55 in the United States and it has been estimated that the
over 55 population will reach approximately 96 million by 2020. In 1990, over 45% of the adult American population was overweight
and approximately 15% was obese. Over a twenty year period, the percentage of adult Americans who were overweight or obese grew
significantly. In 2000, over 60 percent of the adult American population was overweight and approximately 31% was obese. During
the same period, there was an increase in the annual incidence of knee replacements. We believe that there was some correlation
between the rising overweight and obesity rates and the increase in the incidence of knee replacements.
According to the Orthopedic Industry Annual Report for the year
ended June 15, 2010, 2009 global revenues for the orthopedic market were approximately $37.8 billion, comprised of approximately
35% reconstructive devices (18% knees, 15% hips and 1% each for shoulders and other joints), 19% spinal implants/instrumentation,
14% fracture repair, 10% orthobiologics, 9% arthroscopy and soft tissue repair and the remaining 13% other products. In the U.S.
market, approximately 700,000 knee implants and approximately 460,000 hip implants were sold in 2010.
We estimate based on a combination of Millennium Research Group estimates
and our own market analysis, that robotics has the potential to expand the addressable patient population for the unicompartmental
knee arthroplasy from 94,500 in 2010 to 148,000 in 2015.
The Offering
Common stock offered by us
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shares
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Common stock to be outstanding after this offering
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shares
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Initial offering price per share to the public:
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Over-allotment option
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The underwriter has a 30-day option to purchase up to additional shares of common stock from MAKO Surgical Corp. to cover over-allotments, if any.
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Purchases by affiliates
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Christopher Dewey, a director of MAKO Surgical Corp., have indicated an
interest in purchasing an aggregate of approximately [25,000] shares of common stock in this offering. Because this
indication of interest is not a binding agreement or commitment to purchase. Mr. Dewey may elect not
to purchase any shares in this offering, or MAKO Surgical Corp.’s underwriter may elect not to sell any shares in this
offering to Mr. Dewey.
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Use of proceeds
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We intend to use the net proceeds from this offering for commercialization infrastructure, selling, general and administrative activities, research and development activities and to fund working capital and other general corporate purposes. See the section titled “Use of Proceeds.”
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Risk factors
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You should read the “Risk Factors” section of this prospectus supplement and in the documents incorporated by reference in this prospectus supplement for a discussion of factors to consider before deciding to purchase shares of our common stock.
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Nasdaq Global Select Market Symbol
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MAKO
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Unless otherwise indicated, the information in this prospectus supplement
assumes no exercise of the underwriter’s over-allotment option.
The number of shares of common stock that will be outstanding immediately
after this offering is based on 42,893,005 shares of common stock issued and outstanding as of
September
30, 2012 and excludes:
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1,210,957 shares of common stock issuable upon the exercise of outstanding warrants as of September 30, 2012, with a weighted
average exercise price of $11.18 per share;
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5,407,170 shares of common stock issuable upon the exercise of outstanding options as of September 30, 2012, with a weighted
average exercise price of $16.47 per share;
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1,363,889 shares of common stock reserved for future issuance under our stock-based compensation plans as of September 30,
2012 consisting of 1,036,553 shares of common stock reserved for issuance under our 2008 Omnibus Incentive Plan and 327,336 shares
of common stock reserved for issuance under our 2008 Employee Stock Purchase Plan; and
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[●] shares of common stock issued to Pipeline Biomedical Holdings, Inc. on November 13, 2012.
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Risk
Factors
An investment in our common stock involves
a high degree of risk. You should carefully consider the risks described under “Risk Factors” in Part I, Item 1A in
our most recent Annual Report on Form 10-K for the year-ended December 31, 2011, as well as all of the other information contained
in this prospectus supplement and the accompanying prospectus, and incorporated by reference into this prospectus supplement and
the accompanying prospectus, including our financial statements and related notes, before investing in our common stock. If any
of the possible events described in those sections actually occur, our business, business prospects, cash flow, results of operations
or financial condition could be harmed. In this case, the trading price of our common stock could decline, and you might lose all
or part of your investment in our common stock. Additional risks and uncertainties not presently known to us or that we currently
deem immaterial may also impair our operations. In addition to the foregoing, risks related to ownership of our common stock include
the following.
We expect that the price of our common
stock may fluctuate substantially, which could lead to losses for stockholders, possibly resulting in an expansion of the proposed
class period for the existing securities class action or the filing of additional securities class actions.
We expect that the price of our common
stock may fluctuate substantially. The market price for our common stock will be affected by a number of factors, including:
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the receipt, denial or timing of regulatory clearances or approvals of our products or competing products;
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changes in policies affecting third-party coverage and reimbursement in the U.S. and other countries;
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ability of our products, if they receive regulatory clearance, to achieve market success;
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the performance of third-party contract manufacturers and component suppliers;
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our ability to develop sales and marketing capabilities;
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our ability to manufacture our products to commercial standards;
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the success of any collaborations we may undertake with other companies;
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our ability to develop, introduce and market new or enhanced versions of our products on a timely basis;
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actual or anticipated variations in our results of operations or those of our competitors;
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announcements of new products, technological innovations or product advancements by us or our competitors;
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developments with respect to patents and other intellectual property rights;
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sales of common stock or other securities by us or our stockholders in the future;
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additions or departures of key management or other personnel;
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disputes or other developments relating to proprietary rights, including patents, litigation matters and our ability to obtain
patent protection for our technologies;
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trading volume of our common stock;
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changes in earnings estimates or recommendations by securities analysts, failure to obtain analyst coverage of our common stock
or our failure to achieve analyst earnings estimates;
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developments in our industry;
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changes in general economic conditions; and
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general market conditions and other factors unrelated to our operating performance or the operating performance of our competitors.
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In addition, the stock prices of many
companies in the medical device industry have experienced wide fluctuations that have often been unrelated to the operating performance
of these companies. We expect our stock price to be similarly volatile. These broad market fluctuations may continue and could
harm our stock price. Following periods of volatility in the market price of a company’s securities, stockholders have often
instituted class action securities litigation against those companies.
Class action securities litigation, if
instituted against us, could result in substantial costs and a diversion of our management resources, which could significantly
harm our business.
In May 2012, two shareholder complaints
were filed in the U.S. District Court for the Southern District of Florida against the Company and certain of its officers and
directors as purported class actions on behalf of all purchasers of the Company’s common stock between January 9, 2012 and
May 7, 2012. The cases were filed under the captions James H. Harrison, Jr. v. MAKO Surgical Corp. et al., No. 12-cv-60875 and
Brian Parker v. MAKO Surgical Corp. et al., No. 12-cv-60954. The court consolidated the Harrison and Parker complaints and appointed
Oklahoma Firefighters Pension and Retirement System and Baltimore County Employees’ Retirement System to serve as co-lead
plaintiffs. In September 2012, the co-lead plaintiffs filed an amended complaint that expanded the proposed class period through
July 9, 2012. The amended complaint alleges the Company, its Chief Executive Officer, President and Chairman, Maurice R. Ferré,
M.D., and its Chief Financial Officer, Fritz L. LaPorte, violated federal securities laws by making misrepresentations and omissions
during the proposed class period about the Company’s financial guidance for 2012 that artificially inflated the Company's
stock price. The amended complaint seeks an unspecified amount of compensatory damages, interest, attorneys’ and expert fees,
and costs. In October 2012, the Company, Dr. Ferré, and Mr. LaPorte filed a motion to dismiss the amended complaint in its
entirety. The court has not ruled on that motion.
Additionally, in June and July 2012,
four shareholder derivative complaints were filed against the Company, as nominal defendant, and its board of directors, as well
as Dr. Ferré and, in two cases, Mr. LaPorte. Those complaints allege that the Company’s directors and certain officers
violated their fiduciary duties, wasted corporate assets and were unjustly enriched by allowing the Company to make misrepresentations
or omissions that exposed the Company to the Harrison and Parker class actions and damaged the Company's goodwill.
Two of the derivative actions were filed
in the Seventeenth Judicial Circuit in and for Broward County, Florida and have been consolidated under the caption In re MAKO
Surgical Corporation Shareholder Derivative Litigation, No. 12-cv-16221. By order dated July 3, 2012, the court stayed In re MAKO
Surgical Corporation Shareholder Derivative Litigation pending a ruling on any motions to dismiss filed or to be filed in the Harrison
and Parker class actions.
The two other actions were filed in the
U.S. District Court for the Southern District of Florida under the captions Todd Deehl v. Ferré et al., No. 12-cv-61238
and Robert Bardagy v. Ferré et al., No. 12-cv-61380. On August 29, 2012, the court consolidated these two federal cases
under the caption In Re MAKO Surgical Corp. Derivative Litig.¸Case No. 12-61238-CIV-COHN-SELTZER and approved the filing
of a consolidated complaint. The consolidated complaint alleges that MAKO's directors and two of its officers breached fiduciary
duties, wasted corporate assets and were unjustly enriched by issuing, or allowing the issuance of, annual sales guidance for 2012
that they allegedly knew lacked any reasonable basis. The consolidated complaint seeks an unspecified amount of damages, attorneys'
and expert fees, costs and corporate reforms to allegedly improve MAKO's corporate governance and internal procedures. On October
31, 2012, MAKO and the individual defendants each filed motions to dismiss the consolidated complaint. The court has not ruled
on those motions.
Securities analysts may issue negative
reports or cease to cover our common stock, which may have a negative impact on the market price of our common stock.
The trading market for our common stock
may be affected in part by the research and reports that industry or financial analysts publish about us or our business. As a
result of our smaller market capitalization, it may be difficult for our company to continue to attract securities analysts that
will cover our common stock. If one or more of the analysts who elects to cover us downgrades our stock, our stock price would
likely decline rapidly. If one or more of these analysts ceases coverage of our company, we could lose visibility in the market,
which in turn could cause our stock price to decline. This could have a negative effect on the market price of our stock.
Our principal stockholders, directors
and executive officers own a large percentage of our voting stock, which allows them to exercise significant influence over matters
subject to stockholder approval.
As of November 8, 2012, our executive
officers, directors and principal stockholders holding 5% or more of our outstanding common stock beneficially owned or controlled
approximately 30% of the outstanding shares of our common stock. Accordingly, these executive officers, directors and principal
stockholders, acting as a group, have substantial influence over the outcome of corporate actions requiring stockholder approval,
including the election of directors, any merger, consolidation or sale of all or substantially all of our assets or any other significant
corporate transaction. These stockholders may also delay or prevent a change of control or otherwise discourage a potential acquirer
from attempting to obtain control of us, even if such a change of control would benefit our other stockholders. This significant
concentration of stock ownership may adversely affect the trading price of our common stock due to investors’ perception
that conflicts of interest may exist or arise.
We have not paid dividends in the
past and do not expect to pay dividends in the foreseeable future.
We have never declared or paid cash dividends
on our capital stock. We currently intend to retain all future earnings for the operation and expansion of our business and, therefore,
do not anticipate declaring or paying cash dividends in the foreseeable future. The payment of dividends will be at the discretion
of our board of directors and will depend on our results of operations, capital requirements, financial condition, prospects, contractual
arrangements, any limitations on payments of dividends present in any of our future debt agreements, and other factors our board
of directors may deem relevant. If we do not pay dividends, a return on your investment will only occur if our stock price appreciates.
Sales of a substantial number of
shares of our common stock in the public market, or the perception that they may occur, may depress the market price of our common
stock.
We cannot predict the effect, if any,
that market sales of shares of our common stock or the availability of such shares upon the effectiveness of a registration statement,
or upon the expiration of any holding period under Rule 144, will have on the market price prevailing from time to time. Substantially
all of the 43 million shares of our common stock currently outstanding are freely tradable without registration pursuant to Rule
144 under the Securities Act of 1933, as amended, or have been registered for resale with the U.S. Securities and Exchange Commission,
or SEC, and the sale of such shares could have a negative impact on the price of our common stock. Our shelf registration statement
on Form S-3, under which we are conducting this offering, also permits us to offer and sell at any time or from time to time additional
common stock, preferred stock, debt securities and other securities. This shelf registration statement also may create an overhang.
The existence of an overhang, whether or not sales have occurred or are occurring, also could make more difficult our ability to
raise additional financing through the sale of equity or equity related securities in the future at a time and price that we deem
reasonable or appropriate.
Our need to raise additional capital
in the future could have a negative effect on your investment.
We may need to raise additional capital
in the future in order for us to continue to operate our business as currently contemplated. We may raise this additional capital
by drawing on our available credit facility with affiliates of Deerfield Management Company, L.P. or through the public or private
sale of common stock or securities convertible into or exercisable for our common stock. We also have filed with the SEC the shelf
registration statement under which we are conducting this offering and under which we may offer and sell additional common stock,
preferred stock, debt securities and other securities at any time or from time to time. Such sales could be consummated at a significant
discount to the trading price of our stock.
If we sell shares of our common stock
in addition to those sold in the current offering, such sales will further dilute the percentage of our equity that our existing
stockholders own. In addition, private placement financings could involve the issuance of securities at a price per share that
represents a discount to the trading prices of our common stock. Further, debt and equity financings may involve the issuance of
dilutive warrants. No assurance can be given that previous or future investors, finders or placement agents will not claim that
they are entitled to additional anti-dilution adjustments or dispute the calculation of any such adjustments. Any such claim or
dispute could require us to incur material costs and expenses regardless of the resolution and, if resolved unfavorably to us,
to effect dilutive securities issuances or adjustment to previously issued securities.
Our products may in the future be
subject to product actions that could harm our reputation, business operations and financial results.
Manufacturers may, on their own initiative,
initiate a product action, including a non-reportable market withdrawal or a reportable product recall, for the purpose of correcting
a material deficiency, improving device performance, or other reasons. Additionally, the United States Food and Drug Administration,
or the FDA, and similar foreign governmental authorities have the authority to require an involuntary recall of commercialized
products in the event of material deficiencies or defects in design, or manufacture or labeling. In the case of the FDA, the authority
to require a recall must be based on an FDA finding that there is a reasonable probability that the device would cause serious
injury or death. In addition, foreign governmental bodies have the authority to require the recall of our products in the event
of material deficiencies or defects in design or manufacture. Product actions involving any of our products would divert managerial
and financial resources and have an adverse effect on our financial condition and results of operations.
For example, in 2011, we
initiated one product action which we then determined was reportable to the FDA pursuant to correction / removal guidelines,
related to a voluntary field corrective action concerning a software error discovered during product surveillance. Under
certain circumstances, the error value calculated by the RIO system, designed for safety and accuracy of the MAKOplasty
procedure, could be incorrect. This incorrect error value could lead to a possible incorrect interpretation of the
registration accuracy of the RIO system, which could then result in bone resection that is not consistent with the
preoperative surgical plan. We released a software update in February 2011 designed to correct this error. We received a
closure notification from the FDA on January 20, 2012. During 2011, we closed a reportable recall which was initiated in
2010. This reportable recall was related to a defect in the RIO’s camera systems. In November 2010, Northern Digital
Inc., or NDI, the supplier of our camera systems, notified us of a defect in the camera systems. We isolated the affected
camera systems and reported the product action to the FDA in December 2010. We received a closure notification from the FDA in November 2011. Most recently, in September 2012, we notified the FDA of a correction to the software for our RIO system
after identifying a malfunction in the Partial Knee Application that allows the burr tip to exit the haptic boundary with the
burr enabled under certain circumstances. As a result, the burr may be unrestricted to the desired haptic region during use,
potentially allowing for additional removal of bone or burring divot which may be mediated with bone cement. To date, no
injuries have been reported and the FDA has not yet classified this recall. We expect the software upgrade to be completed
across all units in the field by the end of 2013.
Companies are required to maintain certain
records of product actions, even if they determine such product actions are not reportable to the FDA. If we determine that certain
product actions do not require notification of the FDA, the FDA may disagree with our determinations and require us to report those
actions as recalls. A future recall announcement could harm our reputation with customers and negatively affect our sales. In addition,
the FDA could take enforcement action, including any of the following sanctions for failing to report the recalls when they were
conducted or failing to timely report or initiate a reportable product action:
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untitled letters, warning letters, fines, injunctions, consent decrees and civil penalties;
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customer notifications or repair, replacement, refunds, recall, detention or seizure of our products;
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operating restrictions or partial suspension or total shutdown of production;
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refusing or delaying our requests for 510(k) marketing clearance or premarket approval application,
or PMA, approvals of new products or modified products;
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withdrawing 510(k) marketing clearances or PMA approvals that have already been granted;
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refusing to provide Certificates for Foreign Government, or CFGs;
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refusing to grant export approval for our products; or
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pursuing criminal prosecution.
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Any of these sanctions could impair our
ability to produce our products in a cost-effective and timely manner in order to meet our customers’ demands. We may also
be required to bear other costs or take other actions that may have a negative impact on our future sales and our ability to generate
profits.
Forward-Looking
Information
This prospectus and any other offering
material, and the documents incorporated by reference in this prospectus and any other offering material, contain statements that
we believe to be “forward-looking statements” within the meaning of the U.S. federal securities laws. Statements that
are not historical facts, including statements about our beliefs and expectations, are forward-looking statements. Forward-looking
statements include statements generally preceded by, followed by or that include the words “believe,” “could,”
“expect,” “intend,” “may,” “anticipate,” “plan,” “predict,”
“potential,” “estimate” or similar expressions. These statements include, but are not limited to, statements
related to:
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the nature, timing and number of planned new product introductions;
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market acceptance of MAKOplasty®, including the RIO® Robotic Arm Interactive Orthopedic system,
or RIO system, and MAKO RESTORIS® family of implant systems;
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the future availability from third-party suppliers, including single source suppliers, of implants
for and components of our RIO system;
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the anticipated adequacy of our capital resources to meet the needs of our business;
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our ability to sustain, and our goals for, sales and earnings growth, including projections regarding
RIO system installations; and
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our success in achieving timely approval or clearance of products with domestic and foreign regulatory
entities.
Forward-looking statements reflect our
current expectations and are not guarantees of performance. These statements are based on the current estimates and assumptions
of our management as of the date on which such statements are made and are subject to risks, uncertainties, changes in circumstances,
assumptions and other factors that may cause actual results to differ materially from those indicated by forward-looking statements,
many of which are beyond our ability to control or predict. Such factors, among others, may have a material adverse effect on our
business, financial condition and results of operations and may include the following:
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the potentially significant impact of a continued economic downturn or delayed economic recovery on
the ability of our customers to secure adequate funding, including access to credit, for the purchase of our products or cause
our customers to delay a purchasing decision;
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unanticipated changes in the timing of the sales cycle for our products or the vetting process undertaken
by prospective customers;
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changes in competitive conditions and prices in our markets;
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delays in our product development cycles;
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unanticipated issues relating to intended product launches;
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decreases in sales of our principal product lines;
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decreases in utilization of our principal product lines or in procedure volume;
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the effects of Hurricane Sandy;
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increases in expenditures related to increased or changing governmental regulation or taxation of our
business, both nationally and internationally;
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unanticipated issues in complying with domestic or foreign regulatory requirements related to our current
products, including initiating and communicating product actions or product recalls and meeting Medical Device Reporting requirements
and other requirements of the United States Food and Drug Administration, or securing regulatory clearance or approvals for new
products or upgrades or changes to our current products;
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the impact of the United States healthcare reform legislation enacted in March 2010 on hospital spending,
reimbursement, and the taxing of medical device companies;
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the potential impact of the informal Securities and Exchange Commission inquiry and the findings of
that inquiry;
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any unanticipated impact arising out of the securities class actions, shareholder derivative actions,
or any other litigation brought against us;
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loss of key management and other personnel or the inability to attract such management and other personnel;
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unanticipated intellectual property expenditures required to develop, market, and defend our products.
These and other risks are described in greater detail under Item
1A, Risk Factors, contained in Part I of our Annual Report on Form 10-K for the year ended December 31, 2011. You are cautioned
that reliance on any forward-looking statement involves risks and uncertainties. Although we believe that the assumptions on which
the forward-looking statements contained herein are based are reasonable, any of those assumptions could prove to be inaccurate
given the inherent uncertainties as to the occurrence or nonoccurrence of future events. There can be no assurance that the forward-looking
statements contained in this prospectus will prove to be accurate. The inclusion of a forward-looking statement in this prospectus
should not be regarded as a representation by us that our objectives will be achieved.
We urge you to consider these factors before investing in our common
stock. We caution you not to place undue reliance on forward-looking statements that speak only as of the date they were made.
We do not undertake any obligation to release any revisions to these forward-looking statements publicly to reflect events or circumstances
after the date of this prospectus or to reflect the occurrence of unanticipated events.
Use
of Proceeds
We estimate that the net proceeds from
the sale of the shares of our common stock in this offering will be approximately $
million, or approximately $ million if the underwriter
exercises in full its over-allotment option to purchase additional
shares of common stock, in each case after deducting estimated underwriting discounts and commissions and estimated offering expenses
payable by us.
We intend to use the net proceeds from
this offering for commercialization infrastructure, selling, general and administrative activities, research and development activities
and to fund working capital and other general corporate purposes.
The amount and timing of our expenditures
will depend on several factors, including the progress of our commercialization activities and research and development efforts
and the amount of cash used by our operations. Pending their uses, we plan to invest the net proceeds of this offering in short-
and intermediate-term, interest-bearing obligations, investment-grade instruments, certificates of deposit or direct or guaranteed
obligations of the U.S. government.
Dilution
If you purchase our common stock in this
offering, your ownership interest will be diluted to the extent of the difference between the public offering price per share and
the pro forma net tangible book value per share of our common stock after this offering. Net tangible book value per share is determined
by dividing the number of outstanding shares of our common stock into our total tangible assets (total assets less intangible assets)
less total liabilities. As of September 30, 2012, we had a historical net tangible book value of our common stock of approximately
$87.4 million, or approximately $2.04 per share.
Investors participating in this offering
will incur immediate, substantial dilution. After giving effect to the sale of common stock offered in this offering at an assumed
public offering price of $ per share, after deducting underwriting discounts and
commissions and estimated offering expenses payable by us, our net tangible book value as of September 30, 2012 would have been
approximately $ million, or approximately $
per share of common stock. This represents an immediate increase in net tangible book value of approximately $
per share to existing stockholders, and an immediate dilution of approximately $
per share to investors participating in this offering.
The following table illustrates this per
share dilution:
|
|
|
|
|
|
Assumed public offering price per share
|
|
|
|
$
|
|
Historical net tangible book value per share as of September 30, 2012
|
$
|
2.04
|
|
|
|
Increase in net tangible book value per share after this offering
|
$
|
|
|
|
|
Net tangible book value per share after this offering
|
|
|
|
$
|
|
Dilution per share to investors participating in this offering
|
|
|
|
$
|
|
|
|
|
|
|
|
If the underwriter exercises in full its option to purchase
additional shares of common stock at an assumed public offering price of
$ per share, after deducting underwriting discounts and commissions and estimated
offering expenses payable by us, our net tangible book value as of September 30, 2012 would have been approximately $
million, or approximately $ per share of common stock. This represents an
immediate increase in net tangible book value of approximately $ per
share to existing stockholders, and an immediate dilution of approximately $
per share to investors participating in this offering.
The above discussion and tables also assume no exercise of any outstanding
warrants or stock options. As of September 30, 2012, there were:
|
•
|
1,210,957 shares of common stock issuable upon the exercise of outstanding warrants with a weighted
average exercise price of $11.18 per share;
|
|
•
|
5,407,170 shares of common stock issuable upon the exercise of outstanding options with a weighted
average exercise price of $16.47 per share; and
|
|
•
|
1,363,889 shares of common stock reserved for future issuance under our 2008 Omnibus Incentive
Plan and our 2008 Employee Stock Purchase Plan, as well as any automatic increases in the number of shares of our common stock
reserved for future issuance under these benefit plans.
|
To the extent that any of these warrants or options are exercised,
new options or other rights to acquire shares of our common stock are issued under our benefit plans or we issue additional shares
of common stock in the future, there will be further dilution to investors participating in this offering.
The above discussion and tables also exclude
[●] shares of common stock issued to Pipeline Biomedical Holdings, Inc. on November 13, 2012.
Description
of the Common Stock
The following description of our common
stock summarizes general terms and provisions that apply to our common 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.”
As of the date of this prospectus, 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 September 30, 2012, 42,893,005 shares of common stock were issued and outstanding and no shares
of preferred stock were issued and outstanding. As of September 30, 2012, there were 1,210,957 shares of common stock issuable
upon the exercise of outstanding warrants, 5,407,170 shares of common stock issuable upon the exercise of outstanding options;
and 1,363,889 shares of common stock reserved for future issuance under our 2008 Omnibus Incentive Plan and our 2008 Employee Stock
Purchase Plan, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under
these benefit plans.
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 November
7, 2012, we entered into a Subscription Agreement (the “Subscription Agreement”), dated November 7, 2012, with Pipeline
Biomedical Holdings, Inc. (“Pipeline”). In connection with the execution of the Subscription Agreement, on November
13, 2012, we issued to Pipeline [●] shares of our common stock.
We entered into a registration rights
agreement with Pipeline pursuant to which we agreed to file a shelf registration statement for the resale of the shares of our
common stock issued to Pipeline under the Subscription Agreement and to keep such resale registration statement effective until
the earlier of (a) 120 days from the filing of this prospectus supplement, and (b) such time as all such shares registered hereunder
have been sold by the selling stockholder pursuant to and in accordance with the registration statement of which this prospectus
supplement is a part. On November 13, 2012, we registered the [●] shares of common stock issued to Pipeline.
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.
We 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 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 the shelf
registration statement relating to the shares underlying the Deerfield warrants effective. On June 5, 2012, we registered the 275,000
shares of common stock issuable upon the exercise of the warrants issued to Deerfield on May 7, 2012.
Underwriting
The underwriter named below has agreed
to buy, subject to the terms of the purchase agreement, the number of shares listed opposite its name below. The underwriter is
committed to purchase and pay for all of the shares if any are purchased.
Underwriter
|
Number
of
Shares
|
Piper Jaffray & Co.
|
|
The underwriter has advised us that it proposes to offer
the shares of common stock to the public at $ per
share. The underwriter proposes to offer the shares of common stock to certain dealers at the same price less a concession of not
more than $ per share. After this offering, these
figures may be changed by the underwriter.
We have granted to the underwriter an option to purchase
up to an additional shares of common stock from
us, at the same price to the public, and with the same underwriting discount, as set forth above. The underwriter may exercise
this option any time during the 30-day period after the date of the purchase agreement, but only to cover over-allotments, if any.
The following table shows the underwriting fees to be
paid to the underwriter in connection with this offering. These amounts are shown assuming both no exercise and full exercise of
the over-allotment option.
|
Per Share
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Total with No Exercise
|
Total with Full Exercise
|
Paid by us
|
$
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$
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$
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We have agreed to indemnify the underwriter against
certain liabilities, including civil liabilities under the Securities Act, or to contribute to payments that the underwriter may
be required to make in respect of those liabilities.
We and each of our directors, executive officers and
certain principal stockholders have agreed to certain restrictions on our ability to sell additional shares of common stock for
a period of 90 days after the date of this prospectus supplement. We have agreed not to directly or indirectly offer for sale,
sell, contract to sell, grant any option for the sale of, or otherwise issue or dispose of, any shares of common stock, options
or warrants to acquire shares of common stock, or any related security or instrument, without the prior written consent of Piper
Jaffray & Co. The agreements provide exceptions for sales to the underwriter pursuant to the purchase agreement and certain
other situations. Additionally, certain of our directors and officers may sell shares of our common stock where the proceeds are
used to repay certain specified margin calls, or pursuant to existing 10b5-1 trading plans.
From time to time in the ordinary course of business,
the underwriter and certain of its affiliates have engaged, and may in the future engage, in commercial banking or investment banking
transactions with us or our affiliates.
To facilitate this offering, the underwriter may engage
in transactions that stabilize, maintain or otherwise affect the price of the shares of common stock during and after this offering.
Specifically, the underwriter may over-allot or otherwise create a short position in the shares of common stock for its own accounts
by selling more shares of common stock than have been sold to it by us. The underwriter may elect to cover any such short position
by purchasing shares of common stock in the open market or by exercising the over-allotment option granted to the underwriter.
In addition, the underwriter may stabilize or maintain the price of the shares of common stock by bidding for or purchasing shares
of common stock in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate
members or other broker-dealers participating in the offering are reclaimed if shares of common stock previously distributed in
the offering are repurchased, whether in connection with stabilization transactions or otherwise. The effect of these transactions
may be to stabilize or maintain the market price of the shares of common stock at a level above that which might otherwise prevail
in the open market. The imposition of a penalty bid may also affect the price of the shares of common stock to the extent that
it discourages resales of the shares of common stock. The magnitude or effect of any stabilization or other transactions is uncertain.
These transactions may be effected on the NASDAQ Global Select Market or otherwise and, if commenced, may be discontinued at any
time.
In connection with this offering, the underwriter
may also engage in passive market making transactions in our shares of common stock. Passive market making consists of displaying
bids on the NASDAQ Global Select Market limited by the prices of independent market makers and effecting purchases limited by
those prices in response to order flow. Rule 103 of Regulation M promulgated by the SEC limits the amount of net purchases that
each passive market maker may make and the displayed size of each bid. Passive market making may stabilize the market price of
the shares of common stock at a level above that which might otherwise prevail in the open market and, if commenced, may be discontinued
at any time.
Selling Restrictions
Sales outside the United States. No action has been
taken in any jurisdiction (except in the United States) that would permit a public offering of the shares of common stock, or the
possession, circulation or distribution of this prospectus supplement, the accompanying prospectus or any other material relating
to us or the shares of common stock in any jurisdiction where action for that purpose is required. Accordingly, the shares of common
stock may not be offered or sold, directly or indirectly, and none of this prospectus supplement, the accompanying prospectus or
any other offering material or advertisements in connection with the shares of common stock may be distributed or published, in
or from any country or jurisdiction except in compliance with any applicable rules and regulations of any such country or jurisdiction.
The underwriter may arrange to sell shares of common
stock offered hereby in certain jurisdictions outside the United States, either directly or through affiliates, where they are
permitted to do so.
Notice to prospective investors in European Economic
Area. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive, with effect
from and including the date on which the Prospectus Directive is implemented in that Member State, an offer of securities may not
be made to the public in that Member State, other than:
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(a)
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to any legal entity that is a qualified investor as defined in the Prospectus Directive;
|
|
(b)
|
to fewer than 100 or, if that Member State has implemented the relevant provision of the 2010
PD Amending Directive, 150 natural or legal persons (other than “qualified investors” as defined in the Prospectus
Directive) subject to obtaining the prior consent of the representative; or
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(c)
|
in any other circumstances that do not require the publication of a prospectus pursuant to Article 3 of the Prospectus Directive;
|
provided that no such offer of securities shall require
us or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of the above, the expression an “offer
of securities to the public” in relation to any securities in any Member State means the communication in any form and by
any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide
to purchase or subscribe for the securities, as the same may be varied in that Member State by any measure implementing the Prospectus
Directive in that Member State (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in
that Member State), and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in that Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
Notice to prospective investors in the United Kingdom.
This prospectus supplement and any other material in relation to the shares described herein is only being distributed to, and
is only directed at, persons in the United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Prospective
Directive (“qualified investors”) that also (i) have professional experience in matters relating to investments falling
within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Order”),
(ii) who fall within Article 49(2)(a) to (d) of the Order or (iii) to whom it may otherwise lawfully be communicated (all such
persons together being referred to as “relevant persons”). The shares are only available to, and any invitation, offer
or agreement to purchase or otherwise acquire such shares will be engaged in only with, relevant persons. This prospectus supplement
and the accompanying prospectus and their contents are confidential and should not be distributed, published or reproduced (in
whole or in part) or disclosed by recipients to any other person in the United Kingdom. Any person in the United Kingdom that is
not a relevant person should not act or rely on this prospectus or any of its contents.
The distribution of this prospectus supplement and the
accompanying prospectus in the United Kingdom to anyone not falling within the above categories is not permitted and may contravene
the Order. No person falling outside those categories should treat this prospectus supplement and the accompanying prospectus as
constituting a promotion to him, or act on it for any purposes whatever. Recipients of this prospectus supplement and the accompanying
prospectus are advised that we, the underwriter and any other person that communicates this prospectus supplement and the accompanying
prospectus are not, as a result solely of communicating this prospectus supplement or the accompanying prospectus, acting for or
advising them and are not responsible for providing recipients of this prospectus supplement or the accompanying prospectus with
the protections which would be given to those who are clients of any aforementioned entities that is subject to the Financial Services
Authority Rules.
Notice to prospective investors in Hong Kong. Our common
stock may not be offered or sold by means of any document other than: (i) in circumstances which do not constitute an offer to
the public within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), (ii) to “professional investors”
as defined in the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules thereunder, or (iii) in other circumstances
which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance. No advertisement,
invitation or other document relating to our common stock may be issued, whether in Hong Kong or elsewhere, where such document
is directed at, or the contents are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under
the laws of Hong Kong), other than with respect to such common stock that is intended to be disposed of only to persons outside
of Hong Kong or only to “professional investors” as defined in the Securities and Futures Ordinance and any rules thereunder.
Notice to prospective investors in Switzerland. The
shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (SIX) or on any other stock
exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards
for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing
prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility
in Switzerland. Neither this document nor any other offering or marketing material relating to the shares or the offering may be
publicly distributed or otherwise made publicly available in Switzerland.
Neither this document nor any other offering or marketing
material relating to the offering, us, or the shares have been or will be filed with or approved by any Swiss regulatory authority.
In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market
Supervisory Authority FINMA (“FINMA”), and the offer of shares has not been and will not be authorized under the Swiss
Federal Act on Collective Investment Schemes (“CISA”). The investor protection afforded to acquirers of interests in
collective investment schemes under the CISA does not extend to acquirers of the shares.
Notice to prospective investors in the Dubai International
Financial Centre. This prospectus supplement and the accompanying prospectus relate to an exempt offer in accordance with the Offered
Securities Rules of the Dubai Financial Services Authority. This prospectus supplement and the accompanying prospectus are intended
for distribution only to persons of a type specified in those rules. They must not be delivered to, or relied on by, any other
person. The Dubai Financial Services Authority has no responsibility for reviewing or verifying any documents in connection with
exempt offers. The Dubai Financial Services Authority has not approved this prospectus supplement nor taken steps to verify the
information set out in it, and has no responsibility for it. The shares of our common stock which are the subject of the offering
contemplated by this prospectus supplement may be illiquid and/or subject to restrictions on their resale. Prospective purchasers
of the shares offered should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus
supplement you should consult an authorized financial adviser.
Notice to prospective investors in Singapore. This prospectus
supplement and the accompanying prospectus have not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly,
this prospectus supplement and any other document or material in connection with the offer or sale, or invitation for subscription
or purchase, of the shares of our common stock may not be circulated or distributed, nor may the shares be offered or sold, or
be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other
than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”),
(ii) to a relevant person, or any person pursuant to Section 275 (1A), and in accordance with the conditions, specified in Section
275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the
SFA.
Where the shares are subscribed or purchased under Section
275 by a relevant person which is: (a) a corporation (which is not an accredited investor) the sole business of which is to hold
investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor;
or (b) a trust (where the trustee is not an accredited investor) whose sole whole purpose is to hold investments and each beneficiary
is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’
rights and interest in that trust shall not be transferable for six months after that corporation or that trust has acquired the
shares under Section 275 except: (i) to an institutional investor under Section 274 of the SFA or to a relevant person, or any
person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (ii) where no consideration
is given for the transfer; or (iii) by operation of law.
Notice to prospective investors in France. The prospectus
supplement and the accompanying prospectus (including any amendment, supplement or replacement thereto) have not been prepared
in connection with the offering of our securities that has been approved by the Autorité des marchés financiers or
by the competent authority of another State that is a contracting party to the Agreement on the European Economic Area and notified
to the Autorité des marchés financiers; no security has been offered or sold and will be offered or sold, directly
or indirectly, to the public in France except to permitted investors, or Permitted Investors, consisting of persons licensed to
provide the investment service of portfolio management for the account of third parties, qualified investors (investisseurs qualifiés)
acting for their own account and/or corporate investors meeting one of the four criteria provided in article D. 341-1 of the French
Code Monétaire et Financier and belonging to a limited circle of investors (cercle restreint d’investisseurs) acting
for their own account, with “qualified investors” and “limited circle of investors” having the meaning
ascribed to them in Article L. 411-2, D. 411-1, D. 411-2, D. 734-1, D. 744-1, D. 754-1 and D. 764-1 of the French Code Monétaire
et Financier; none of this prospectus supplement and the accompanying prospectus or any other materials related to the offer or
information contained therein relating to our securities has been released, issued or distributed to the public in France except
to Permitted Investors; and the direct or indirect resale to the public in France of any securities acquired by any Permitted Investors
may be made only as provided by articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the French Code Monétaire
et Financier and applicable regulations thereunder.
Notice to prospective investors in Italy. The offering
of the securities has not been registered pursuant to the Italian securities legislation and, accordingly, we have not offered
or sold, and will not offer or sell, our common stock in the Republic of Italy in a solicitation to the public, and that sales
of our common stock in the Republic of Italy shall be effected in accordance with all Italian securities, tax and exchange control
and other applicable laws and regulations. In any case, our common stock cannot be offered or sold to any individuals in the Republic
of Italy either in the primary market or the secondary market.
We will not offer, sell or deliver any securities
or distribute copies of this prospectus supplement or any other document relating to our common stock in the Republic of Italy
except to “Professional Investors”, as defined in Article 31.2 of CONSOB Regulation No. 11522 of 2 July 1998 as amended
(“Regulation No. 11522”), pursuant to Article 30.2 and 100 of Legislative Decree No. 58 of 24 February 1998 as amended
(“Decree No. 58”), or in any other circumstances where an expressed exemption to comply with the solicitation restrictions
provided by Decree No. 58 or Regulation No. 11971 of 14 May 1999 as amended applies, provided, however, that any such offer, sale
or delivery of our common stock or distribution of copies of this prospectus supplement or any other document relating to our
common stock in the Republic of Italy must be:
(a) made
by investment firms, banks or financial intermediaries permitted to conduct such activities in the Republic of Italy in accordance
with Legislative Decree No. 385 of 1 September 1993 as amended (“Decree No. 385”), Decree No. 58, CONSOB Regulation
No. 11522 and any other applicable laws and regulations;
(b) in
compliance with Article 129 of Decree No. 385 and the implementing instructions of the Bank of Italy, pursuant to which the issue,
trading or placement of securities in Italy is subject to a prior notification to the Bank of Italy, unless an exemption, depending,
inter alia, on the aggregate amount and the characteristics of our common stock issued or offered in the Republic of Italy, applies;
and
(c) in
compliance with any other applicable notification requirement or limitation which may be imposed by CONSOB or the Bank of Italy.
Notice to prospective investors in Germany. This prospectus
supplement and the accompanying prospectus have not been prepared in accordance with the requirements for a securities or sales
prospectus under the German Securities Prospectus Act (Wertpapierprospektgesetz), the German Sales Prospectus Act (Verkaufsprospektgesetz),
or the German Investment Act (Investmentgesetz). Neither the German Federal Financial Services Supervisory Authority (Bundesanstalt
fur Finanzdienstleistungsaufsicht—BaFin) nor any other German authority has been notified of the intention to distribute
shares of our common stock in Germany. Consequently, shares of our common stock may not be distributed in Germany by way of public
offering, public advertisement or in any similar manner AND THIS PROSPECTUS SUPPLEMENT AND ANY OTHER DOCUMENT RELATING TO THE OFFERING,
AS WELL AS INFORMATION OR STATEMENTS CONTAINED THEREIN, MAY NOT BE SUPPLIED TO THE PUBLIC IN GERMANY OR USED IN CONNECTION WITH
ANY OFFER FOR SUBSCRIPTION OF SHARES OF OUR COMMON STOCK TO THE PUBLIC IN GERMANY OR ANY OTHER MEANS OF PUBLIC MARKETING. Shares
of our common stock are being offered and sold in Germany only to qualified investors which are referred to in Section 3, paragraph
2 no. 1, in connection with Section 2, no. 6, of the German Securities Prospectus Act, Section 8f paragraph 2 no. 4 of the German
Sales Prospectus Act, and in Section 2 paragraph 11 sentence 2 no. 1 of the German Investment Act. This prospectus supplement and
the accompanying prospectus are strictly for use of the person who has received it. They may not be forwarded to other persons
or published in Germany.
Notice to prospective investors in Norway. Shares of
our common stock will not be offered in Norway other than (i) to investors who are deemed professional investors under Section
5-4 of the Norwegian Securities Trading Act of 1997 as defined in Regulation no. 1424 of 9 December 2005 (“Professional Investors”),
(ii) to fewer than 100 investors that are not Professional Investors or with a total consideration of less than EUR 100,000 calculated
over a period of 12 months, or (iii) with a minimum subscription amount of EUR 50,000. Consequently, no public offering will be
made in Norway and this prospectus supplement and the accompanying prospectus have not been filed with or approved by any Norwegian
authority. The prospectus supplement and accompanying prospectus must not be reproduced or otherwise distributed to others by the
recipient.
Notice to prospective investors in Finland. This prospectus
supplement and the accompanying prospectus have not been prepared to comply with the standards and requirements regarding public
offering set forth in the Finnish Securities Market Act (1989/495, as amended) and they have not been approved by the Finnish Financial
Supervision Authority. Shares of our common stock may not be offered, sold, advertised or otherwise marketed in Finland under circumstances
which constitute public offering of securities under Finnish law.
Acceptance of prospectus. By accepting this prospectus
supplement and the accompanying prospectus, the recipient hereof represents and warrants that he is entitled to receive them in
accordance with the restrictions set forth above and agrees to be bound by limitations contained herein. Any failure to comply
with these limitations may constitute a violation of law.
Legal
Matters
Foley &
Lardner LLP will pass upon the validity of the common stock being offered by this prospectus. The underwriter is being represented
by Latham & Watkins LLP, Costa Mesa, California.
EXPERTS
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 the 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 controls 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.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual,
quarterly and current reports, proxy statements and other information with the SEC. We have also filed a registration statement
on Form S-3, including exhibits, under the Securities Act of 1933, as amended, with respect to the shares of common stock offered
by this prospectus supplement. This prospectus supplement and the accompanying prospectus are a part of the registration statement,
but do 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 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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•
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incorporated documents are considered part of this prospectus supplement;
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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 supplement.
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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, 2011;
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our Definitive Proxy Statement on Schedule 14A filed on April 27, 2012;
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012 and September 30, 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, May 7, 2012, June 5, 2012, June 11, 2012, July 3, 2012, July 23, 2012, August 1, 2012, October 3,
2012, November 7, 2012 and November 13, 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 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 prospectus supplement and prior
to the termination of this offering, shall be deemed to be incorporated by reference into this prospectus supplement and to be
part of this prospectus supplement from the date of the filing of the documents with the SEC.
We will provide to each person to whom
a prospectus supplement is delivered a copy of any of the filings incorporated by reference into this prospectus supplement, at
no cost, upon written or oral request directed to us at the following address or telephone number:
Investor Relations
MAKO Surgical Corp.
2555 Davie Road
Fort Lauderdale, FL 33317
(954) 927-2044
investorrelations@makosurgical.com
You can also find these filings on our website at www.makosurgical.com.
However, we are not incorporating the information on our website other than these filings into this prospectus supplement or the
accompanying prospectus.
Prospectus
MAKO Surgical Corp.
Debt Securities
Common Stock
Preferred Stock
Warrants
Stock Purchase Contracts
Stock Purchase Units
_________________________
We may offer
and sell from time to time our securities in one or more classes or series and
in amounts, at prices and on terms that we will determine at the times of the
offerings.
This
prospectus describes the general manner in which our securities may be offered
using this prospectus. We will provide specific terms of the securities,
including the offering prices, in one or more supplements to this prospectus.
The supplements may also add, update or change information contained in this
prospectus. You should read this prospectus and the prospectus supplement
relating to the specific issue of securities carefully before you invest.
We may
offer the securities independently or together in any combination for sale
directly to purchasers or through underwriters, dealers or agents to be
designated at a future date. The supplements to this prospectus will provide
the specific terms of the plan of distribution.
In
addition, selling stockholders to be named in a prospectus supplement may offer
and sell from time to time shares of our common stock in such amounts as set
forth in a prospectus supplement. Unless otherwise set forth in a prospectus
supplement, we will not receive any proceeds from the sale of shares of our
common stock by any selling stockholders.
Our common
stock is listed on The Nasdaq Global Select Market under the symbol MAKO.
Investment
in our securities involves risks. See Risk Factors in our most recent Annual
Report on Form 10-K and in any applicable prospectus supplement and/or other
offering material for a discussion of certain factors which should be
considered in an investment of the securities which may be offered hereby.
_________________________
Neither the
Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
_________________________
The date of this prospectus is May
9, 2012.
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TABLE OF
CONTENTS
A
BOUT THIS PROSPECTUS
Unless
the context otherwise requires, in this prospectus, MAKO, company, we,
us, our and ours refer to MAKO Surgical Corp.
This
prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, or SEC, using a shelf registration
process. Under this shelf registration process, we may, from time to time, sell
the securities or combinations of the securities described in this prospectus
in one or more offerings. This prospectus provides you with a general
description of the securities that we may offer. Each time we offer securities,
we will provide a prospectus supplement and/or other offering material that
will contain specific information about the terms of that offering. The
prospectus supplement and/or other offering material may also add, update or
change information contained in this prospectus. You should read this
prospectus, any prospectus supplement and any other offering material together
with additional information described under the heading Where You Can Find
More Information.
You should
rely only on the information contained or incorporated by reference in this
prospectus and in any prospectus supplement or other offering material. We have
not authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making offers to sell or solicitations to buy the
securities in any jurisdiction in which an offer or solicitation is not
authorized or in which the person making that offer or solicitation is not
qualified to do so or to anyone to whom it is unlawful to make an offer or
solicitation. You should not assume that the information in this prospectus,
any prospectus supplement or any other offering material, or the information we
previously filed with the SEC that we incorporate by reference in this
prospectus or any prospectus supplement, is accurate as of any date other than
its respective date. Our business, financial condition, results of operations
and prospects may have changed since those dates.
We
have received or applied for trademark registration of and/or claim trademark
rights, including the following marks that appear in this prospectus:
MAKOplasty®, RIO®, and RESTORIS®, as well as in the MAKO Surgical Corp.
MAKO logo, whether standing alone or in connection with the words MAKO
Surgical Corp. Any other trademarks, trade names and service marks appearing
in this prospectus or incorporated by reference are the property of their
respective owners.
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Table of Contents
M
AKO SURGICAL CORP.
We
are an emerging medical device company that markets our advanced robotic arm
solution and orthopedic implants for orthopedic procedures. We offer
MAKOplasty, an innovative, restorative surgical solution that enables
orthopedic surgeons to consistently, reproducibly and precisely treat patient
specific osteoarthritic disease.
MAKOplasty
is performed using our proprietary RIO Robotic Arm Interactive Orthopedic, or
RIO, system, MAKOplasty joint specific software applications for the knee and
hip, and proprietary RESTORIS implant systems. The RIO system is a surgeon-interactive tactile surgical
platform that incorporates a robotic arm and patient-specific visualization
technology, which enables precise, consistently reproducible bone resection for
the accurate insertion and alignment of MAKOs RESTORIS family of implants.
We believe MAKOplasty will empower physicians to address the needs of the large
and growing, yet underserved, population of patients with osteoarthritic
disease who desire a restoration of quality of life and reduction of pain, but
for whom current surgical treatments are not appropriate or optimized.
We are a
Delaware corporation and our principal executive offices are located at 2555
Davie Road, Fort Lauderdale, Florida 33317. Our telephone number is (954)
927-2044. Our website address is www.makosurgical.com. We do not incorporate
the information on our website into this prospectus, and you should not
consider it part of this prospectus.
U
SE OF PROCEEDS
Unless
otherwise described in the applicable prospectus supplement, we intend to use
the net proceeds from the sale of the securities for general corporate
purposes.
R
ATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND AND
ACCRETION REQUIREMENTS
The
following table presents our ratio of earnings to fixed charges and ratio of
earnings to combined fixed charges and preferred stock dividend and accretion
requirements for the periods presented.
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Three
Months Ended
March 31,
2012
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Years Ended December 31,
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2011
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2010
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2009
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2008
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2007
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Ratio of earnings to fixed charges
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(1)
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(1)
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(1)
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(1)
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(1)
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(1)
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Ratio of earnings to combined fixed charges and
preferred stock dividend and accretion requirements
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(2)
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(2)
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(2)
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(2)
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(3)
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(3)
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(1)
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Earnings
for the three months ended March 31, 2012, and for the years ended
December 31, 2011, 2010, 2009, 2008 and 2007 were inadequate to cover
total fixed charges. The coverage deficiencies for the three months ended
March 31, 2012, and for the years ended December 31, 2011, 2010,
2009, 2008 and 2007 were $11.7 million, $36.0 million, $38.6 million, $34.0
million, $37.1 million and $20.7 million, respectively.
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(2)
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All
outstanding shares of our preferred stock were converted to common stock
immediately prior to the closing of our initial public offering on February
20, 2008. Accordingly, we did not have any preferred stock outstanding and we
did not pay or accrue any preferred stock dividends during the three months
ended March 31, 2012 and during the years ended December 31, 2011, 2010 and
2009.
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(3)
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Earnings
for the years ended December 31, 2008 and 2007 were inadequate to cover
combined fixed charges and preferred stock dividend and accretion
requirements. The coverage deficiencies for the years ended December 31,
2008 and 2007 were $37.6 million and $24.3 million, respectively.
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Table of Contents
For purposes
of calculating the ratios of earnings to fixed charges, earnings before income
taxes and fixed charges are divided by fixed charges. Fixed charges represent
interest (whether expensed or capitalized), the amortization of debt discount
and expenses and the estimated interest component of rent expense.
D
ESCRIPTION OF DEBT SECURITIES
The
following description of the terms of the debt securities sets forth general
terms that may apply to the debt securities and provisions of the indenture
that will govern the debt securities, and is not complete. We will describe the
particular terms of any debt securities in the prospectus supplement relating
to those debt securities.
The
debt securities will be our senior debt securities and will be issued under an
indenture between us and a trustee, a form of which is incorporated by
reference into this prospectus and attached as an exhibit to the registration
statement of which this prospectus is a part. See Where You Can Find More
Information. We refer to this indenture as the indenture.
The
following is a summary of some provisions of the indenture. The following
summary does not purport to be complete, and is subject to, and qualified in
its entirety by reference to, all of the provisions of the indenture, including
the definitions of specified terms used in the indenture, and the debt
securities. We encourage you to read the indenture and the debt securities
because they, and not this description, set forth your rights as a holder of
our debt securities. We will describe the particular terms of any debt
securities in the prospectus supplement relating to those debt securities.
Parenthetical section references under this heading are references to sections
in the indenture unless we indicate otherwise.
General Terms
The
indenture does not limit the amount of debt securities that we may issue.
(Section 301). The indenture provides that debt securities may be issued up to
the principal amount authorized by us from time to time. The debt securities
will be unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. None of our subsidiaries, if any, will have any
obligations with respect to the debt securities. Therefore, our rights and the
rights of our creditors, including holders of senior debt securities and
subordinated debt securities, to participate in the assets of any subsidiary
will be subject to the prior claims of the creditors of any such subsidiaries.
We
may issue the debt securities in one or more separate series of senior debt
securities. (Section 301). The prospectus supplement relating to the particular
series of debt securities being offered will specify the particular amounts,
prices and terms of those debt securities. These terms may include:
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the title of
the debt securities and the series in which the debt securities will be
included;
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the
authorized denominations and aggregate principal amount of the debt
securities;
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the date or
dates on which the principal and premium, if any, are payable;
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the rate or
rates per annum at which the debt securities will bear interest, if there is
any interest, or the method or methods of calculating interest and the date
from which interest will accrue;
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the place or
places where the principal of and any premium and interest on the debt
securities will be payable;
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the dates on
which the interest will be payable and the corresponding record dates;
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the period
or periods within which, the price or prices at which, and the terms and
conditions on which, the debt securities may be redeemed, in whole or in
part, at our option;
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any
obligation to redeem, repay or purchase debt securities pursuant to any
sinking fund or analogous provisions or at the option of a holder;
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the portion
of the principal amount of the debt securities payable upon declaration of
the acceleration of the maturity of the debt securities;
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the person
to whom any interest on any debt security will be payable if other than the
person in whose name the debt security is registered on the applicable record
date;
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any events
of default, covenants or warranties applicable to the debt securities;
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if
applicable, provisions related to the issuance of debt securities in
book-entry form;
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the
currency, currencies or composite currency of denomination of the debt
securities;
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the
currency, currencies or composite currencies in which payments on the debt
securities will be payable and whether the holder may elect payment to be
made in a different currency;
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whether and
under what conditions we will pay additional amounts to holders of the debt
securities;
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the terms
and conditions of any conversion or exchange provisions in respect of the
debt securities;
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the terms
pursuant to which our obligation under the indenture may be terminated
through the deposit of money or government obligations; and
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any other
specific terms of the debt securities not inconsistent with the indenture.
(Section 301).
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Unless
otherwise specified in the applicable prospectus supplement, the debt
securities will not be listed on any securities exchange.
Unless
the applicable prospectus supplement specifies otherwise, we will issue the
debt securities in fully registered form without coupons. If we issue debt
securities of any series in bearer form, the applicable prospectus supplement
will describe the special restrictions and considerations, including special
offering restrictions and special federal income tax considerations, applicable
to those debt securities and to payment on and transfer and exchange of those
debt securities.
U.S. Federal Income Tax Considerations
We
may issue the debt securities as original issue discount securities, bearing no
interest or bearing interest at a rate, which, at the time of issuance, is
below market rates, to be sold at a substantial discount below their principal
amount. We will describe some special U.S. federal income tax and other
considerations applicable to any debt securities that are issued as original
issue discount securities in the applicable prospectus supplement. We encourage
you to consult with your own competent tax and financial advisors on these
important matters.
Payment, Registration, Transfer and Exchange
Subject
to any applicable laws or regulations, we will make payments on the debt
securities at a designated office or agency, unless the applicable prospectus
supplement otherwise sets forth. At our option, however, we may also make
interest payments on the debt securities in registered form:
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by checks
mailed to the persons entitled to interest payments at their registered
addresses; or
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Table of Contents
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by wire
transfer to an account maintained by the person entitled to interest payments
as specified in the security register.
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Unless the
applicable prospectus supplement otherwise indicates, we will pay any
installment of interest on debt securities in registered form to the person in
whose name the debt security is registered at the close of business on the
regular record date for that installment of interest. (Section 307). If a
holder wishes to receive payment by wire transfer, the holder should provide
the paying agent with written wire transfer instructions at least 15 days prior
to the payment date.
Unless
the applicable prospectus supplement otherwise sets forth, debt securities
issued in registered form will be transferable or exchangeable at the agency we
may designate from time to time. Debt securities may be transferred or
exchanged without service charge, other than any tax or other governmental
charge imposed in connection with the transfer or exchange. (Section 305).
Book-Entry Procedures
The
applicable prospectus supplement for each series of debt securities will state
whether those debt securities will be subject to the following provisions.
Unless
debt securities in physical form are issued, the debt securities will be
represented by one or more fully-registered global certificates, in
denominations of $1,000 or any integral multiple of $1,000. Each global
certificate will be deposited with, or on behalf of, The Depository Trust
Company, which we refer to in this prospectus as DTC, and registered in its
name or in the name of Cede & Co. or other nominee of DTC. No holder of
debt securities initially issued as a global certificate will be entitled to
receive a certificate in physical form, except as set forth below.
DTC
has advised us that:
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DTC is:
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a banking
organization within the meaning of the New York banking law;
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a limited
purpose trust company organized under the New York banking law;
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a member of
the Federal Reserve System;
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a clearing
corporation within the meaning of the New York Uniform Commercial Code; and
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a clearing
agency registered pursuant to Section 17A of the Securities Exchange Act of
1934, as amended, or the Exchange Act.
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DTC holds
securities for DTC participants and facilitates the settlement of securities
transactions between DTC participants through electronic book-entry transfers
and pledges, thereby eliminating the need for physical movement of
certificates.
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DTC
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and other organizations.
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Access to
DTCs book-entry system is also available to others, such as banks, brokers,
dealers, trust companies and clearing corporations that clear through or
maintain a custodial relationship with a DTC participant, either directly or
indirectly.
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Table of Contents
Holders
that are not DTC participants but desire to purchase, sell or otherwise
transfer ownership of, or other interests in, the debt securities may do so
only through DTC participants. In addition, holders of the debt securities will
receive all distributions of principal and interest from the trustee through
DTC participants. Under the rules, regulations and procedures creating and
affecting DTC and its operation, DTC is required to make book-entry transfers
of debt securities among DTC participants on whose behalf it acts and to
receive and transmit distributions of principal of, and interest on, the debt
securities. Under the book-entry system, holders of debt securities may
experience some delay in receipt of payments, since the trustee will forward
such payments to Cede & Co., as nominee for DTC, and DTC, in turn, will
forward the payments to the appropriate DTC participants.
DTC
participants will be responsible for distributions to holders of debt
securities, which distributions will be made in accordance with customary
industry practices. Although holders of debt securities will not have
possession of the debt securities, the DTC rules provide a mechanism by which
those holders will receive payments and will be able to transfer their
interests. Although the DTC participants are expected to convey the rights
represented by their interests in any global security to the related holders,
because DTC can act only on behalf of DTC participants, the ability of holders
of debt securities to pledge the debt securities to persons or entities that
are not DTC participants or to otherwise act with respect to the debt
securities may be limited due to the lack of physical certificates for the debt
securities.
Neither
we nor the trustee will be responsible or liable for any aspect of the records
relating to, or payments made on account of, beneficial ownership interests in
the debt securities or for supervising or reviewing any records relating to
such beneficial ownership interests. Since the only holder of debt
securities, for purposes of the indenture, will be DTC or its nominee, the
trustee will not recognize beneficial holders of debt securities as holders of
debt securities, and beneficial holders of debt securities will be permitted
to exercise the rights of holders only indirectly through DTC and DTC
participants. DTC has advised us that it will take any action permitted to be
taken by a holder of debt securities under the indenture only at the direction
of one or more DTC participants to whose accounts with DTC the related debt
securities are credited.
All
payments we make to the trustee will be in immediately available funds and will
be passed through to DTC in immediately available funds.
Physical
certificates will be issued to holders of a global security, or their nominees,
if:
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DTC advises
the trustee in writing that DTC is no longer willing, able or eligible to
discharge properly its responsibilities as depository and we are unable to
locate a qualified successor; or
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we decide in
our sole discretion to terminate the book-entry system through DTC. (Section
305).
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In such event,
the trustee will notify all holders of debt securities through DTC participants
of the availability of such physical debt securities. Upon surrender by DTC of
a definitive global note representing the debt securities and receipt of
instructions for reregistration, the trustee will reissue the debt securities
in physical form to holders or their nominees. (Section 305).
Debt
securities in physical form will be freely transferable and exchangeable at the
office of the trustee upon compliance with the requirements set forth in the
indenture.
No
service charge will be imposed for any registration of transfer or exchange,
but payment of a sum sufficient to cover any tax or other governmental charge
may be required. (Section 305).
Consolidation, Merger or Sale by the Company
The
indenture generally permits a consolidation or merger between us and another
U.S. corporation. It also permits the sale or transfer by us of all or
substantially all of our property and assets and the purchase by us of all or
substantially all of the property and assets of another corporation. These
transactions are permitted if:
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the
resulting or acquiring corporation, if other than us, assumes all of our
responsibilities and liabilities under the indenture, including the payment
of all amounts due on the debt securities and performance of the covenants in
the indenture; and
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immediately
after the transaction, no event of default exists. (Section 801).
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Even
though the indenture contains the provisions described above, we are not
required by the indenture to comply with those provisions if we sell all of our
property and assets to another U.S. corporation if, immediately after the sale,
that corporation is one of our wholly-owned subsidiaries. (Section 803).
If
we consolidate or merge with or into any other corporation or sell all or
substantially all of our assets according to the terms and conditions of the
indenture, the resulting or acquiring corporation will be substituted for us in
the indenture with the same effect as if it had been an original party to the
indenture. As a result, the successor corporation may exercise our rights and
powers under the indenture, in our name or in its own name and we will be
released from all our liabilities and obligations under the indenture and under
the debt securities. (Section 802).
Events of Default, Notice and Certain Rights
on Default
Unless
otherwise stated in the applicable prospectus supplement, an event of
default, when used with respect to any series of debt securities, means any of
the following:
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failure to
pay interest on any debt security of that series for 30 days after the
payment is due;
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failure to
pay the principal of or any premium on any debt security of that series when
due;
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failure to
deposit any sinking fund payment on debt securities of that series when due;
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failure to
perform any other covenant in the indenture that applies to debt securities
of that series for 90 days after we have received written notice of the
failure to perform in the manner specified in the indenture;
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certain
events in bankruptcy, insolvency or reorganization; or
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any other
event of default that may be specified for the debt securities of that series
when that series is created. (Section 501).
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If
an event of default for any series of debt securities occurs and continues, the
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If a
declaration occurs, the holders of a majority of the aggregate principal amount
of the outstanding debt securities of that series can, subject to certain
conditions, rescind the declaration. (Section 502).
The
prospectus supplement relating to each series of debt securities which are
original issue discount securities will describe the particular provisions that
relate to the acceleration of maturity of a portion of the principal amount of
that series when an event of default occurs and continues.
An
event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under the indenture.
The
indenture requires us to furnish an officers certificate to the trustee each
year as to the knowledge of our principal executive, financial or accounting
officer of our compliance with all conditions and covenants under the
indenture. (Section 1008). The trustee will transmit by mail to the holders of
debt securities of a series notice of any default.
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Other
than its duties in the case of a default, the trustee will not be obligated to
exercise any of its rights or powers under an indenture at the request, order
or direction of any holders, unless the holders offer the trustee
indemnification satisfactory to the trustee. (Section 603). If indemnification
satisfactory to the trustee is provided, then, subject to certain other rights
of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series may, with respect to the debt
securities of that series, direct the time, method and place of:
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conducting
any proceeding for any remedy available to the trustee; or
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exercising
any trust or power conferred upon the trustee. (Section 512).
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The
holder of a debt security of any series will have the right to begin any
proceeding with respect to the indenture or for any remedy only if:
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the holder
has previously given the trustee written notice of a continuing event of
default with respect to that series;
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the holders
of at least 25% in aggregate principal amount of the outstanding debt
securities of that series have made a written request of, and offered
reasonable indemnification to, the trustee to begin the proceeding;
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the trustee
has not started the proceeding within 60 days after receiving the request;
and
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the trustee
has not received directions inconsistent with the request from the holders of
a majority in aggregate principal amount of the outstanding debt securities
of that series during those 60 days. (Section 507).
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The
holders of not less than a majority in aggregate principal amount of any series
of debt securities, by notice to the trustee for that series, may waive, on
behalf of the holders of all debt securities of that series, any past default
or event of default with respect to that series and its consequences. (Section
513). A default or event of default in the payment of the principal of, or
premium or interest on, any debt security and certain other defaults may not,
however, be waived. (Sections 508 and 513).
Modification of the Indenture
We, as well as
the trustee for a series of debt securities, may enter into one or more
supplemental indentures, without the consent of the holders of any of the debt
securities, in order to:
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evidence the
succession of another corporation to us and the assumption of our covenants
by a successor;
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add to our
covenants or surrender any of our rights or powers;
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add
additional events of default for any series;
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add, change
or eliminate any provision affecting debt securities that are not yet issued;
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secure the debt
securities;
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establish
the form or terms of debt securities not yet issued;
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evidence and
provide for successor trustees;
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add, change
or eliminate any provision affecting registration as to principal of debt
securities;
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permit the
exchange of debt securities;
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change or
eliminate restrictions on payment in respect of debt securities;
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change or
eliminate provisions or add any other provisions that are required or
desirable in accordance with any amendments to the Trust Indenture Act of
1939, which we refer to in this prospectus as the Trust Indenture Act, on the
condition that this action does not adversely affect the interests of any
holder of debt securities of any series issued under the indenture in any
material respect; or
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cure any
ambiguity or correct any mistake. (Section 901).
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In
addition, with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of all series
affected by the supplemental indenture, we and the trustee may execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the indenture or any supplemental indenture or modifying
the rights of the holders of debt securities of that series. No such
supplemental indenture may, however, without the consent of the holder of each
debt security that is affected:
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change the
time for payment of principal or interest on any debt security;
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reduce the
principal of, or any installment of principal of, or interest on, any debt
security;
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reduce the
amount of premium, if any, payable upon the redemption of any debt security;
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reduce the
amount of principal payable upon acceleration of the maturity of an original
issue discount debt security;
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impair the
right to institute suit for the enforcement of any payment on or for any debt
security;
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reduce the
percentage in principal amount of the outstanding debt securities of any
series the consent of whose holders is required for modification or amendment
of the indenture or for waiver of compliance with certain provisions of the
indenture or for waiver of certain defaults;
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modify the
provisions relating to waiver of some defaults or any of the foregoing
provisions;
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change the
currency of payment;
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adversely
affect the right to repayment of debt securities of any series at the option
of the holders of those debt securities; or
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change the
place of payment. (Section 902).
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Any
supplemental indenture will be filed with the SEC as an exhibit to:
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a
post-effective amendment to the registration statement of which this
prospectus is a part;
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an annual
report on Form 10-K;
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a quarterly
report on Form 10-Q; or
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a current
report on Form 8-K.
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Defeasance and Covenant Defeasance
When
we use the term defeasance, we mean discharge from some or all of our
obligations under the indenture. If we deposit with the trustee sufficient cash
or government obligations to pay the principal, interest, any premium and any
mandatory sinking fund or analogous payments due to the stated maturity or a
redemption date of the debt securities of a particular series, then at our
option:
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we will be
discharged from our obligations for the debt securities of that series, the
holders of the debt securities of the affected series will no longer be
entitled to the benefits of the indenture, except for registration of
transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities, and those holders may look only to the deposited
funds or obligations for payment, which is referred to as defeasance; or
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we will no longer
be under any obligation to comply with certain covenants under the indenture
as it relates to that series, and some events of default will no longer apply
to us, which is referred to as covenant defeasance. (Sections 403 and
1501).
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Unless
the applicable prospectus supplement specifies otherwise and except as
described below, the conditions to both defeasance and covenant defeasance
are as follows:
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it must not
result in a breach or violation of, or constitute a default or event of
default under, the indenture, or result in a breach or violation of, or
constitute a default under, any other of our material agreements or
instruments;
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certain
bankruptcy-related defaults or events of default with respect to us must not
have occurred and be occurring during the period commencing on the date of
the deposit of the trust funds to defease the debt securities and ending on
the 91st day after that date;
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we must
deliver to the trustee an officers certificate and an opinion of counsel
addressing compliance with the conditions of the defeasance or covenant
defeasance; and
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we must
comply with any additional conditions to the defeasance or covenant
defeasance that the indenture may impose on us. (Sections 403 and 1501).
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In
the event that government obligations deposited with the trustee for the
defeasance of such debt securities decrease in value or default subsequent to
their being deposited, we will have no further obligation, and the holders of
the debt securities will have no additional recourse against us, for any
decrease in value or default. If indicated in the prospectus supplement, in
addition to obligations of the United States or an agency or instrumentality of
the United States, government obligations may include obligations of the
government or an agency or instrumentality of the government issuing the
currency in which debt securities of such series are payable.
We
may exercise our defeasance option for the debt securities even if we have
already exercised our covenant defeasance option. If we exercise our defeasance
option, payment of the debt securities may not be accelerated because of
default or an event of default. If we exercise our covenant defeasance option,
payment of the debt securities may not be accelerated because of default or an
event of default with respect to the covenants to which the covenant defeasance
is applicable. If, however, acceleration occurs, the realizable value at the
acceleration date of the money and government obligations in the defeasance
trust could be less than the principal and interest then due on the debt
securities, because the required deposit in the defeasance trust is based on
scheduled cash flow rather than market value, which will vary depending on
interest rates and other factors.
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Conversion and Exchange Rights
The
debt securities of any series may be convertible into or exchangeable for other
securities of our company or another issuer or property or cash on the terms
and subject to the conditions set forth in the applicable prospectus
supplement. (Section 301).
Governing Law
The
indenture and the debt securities will be governed by, and construed under, the
laws of the State of New York without regard to conflicts of laws principles
thereof.
Regarding the Trustee
We
may from time to time maintain lines of credit, and have other customary
banking relationships, with the trustee under the indenture.
The
indenture and provisions of the Trust Indenture Act that are incorporated by
reference therein contain limitations on the rights of the trustee, should it
become one of our creditors, to obtain payment of claims in certain cases or to
realize on certain property received by it in respect of any such claim as
security or otherwise. The trustee is permitted to engage in other transactions
with us or any of our affiliates; provided, however, that if it acquires any
conflicting interest (as defined under the Trust Indenture Act), it must
eliminate such conflict or resign.
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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. 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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Table of Contents
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 registrars 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 stockholders 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 SECs public reference
room at 100 F Street, N.E., Washington D.C. 20549. You can call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
room. You can also find our public filings with the SEC on the internet at a
web site maintained by the SEC located at http://www.sec.gov.
We
are incorporating by reference specified documents that we file with the SEC,
which means:
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incorporated documents are
considered part of this prospectus;
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we are disclosing important
information to you by referring you to those documents; and
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information we file with the
SEC will automatically update and supersede information contained in this
prospectus.
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We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the 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 agents commission,
dealers purchase price or underwriters 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 stockholders
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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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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Shares
MAKO SURGICAL CORP.
Common Stock
__________________________
PROSPECTUS SUPPLEMENT
Piper Jaffray
November ,
2012
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