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 February 21, 2013, 47,216,722 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.
Deerfield
Funds Registration Rights.
On May 7, 2012, we entered
into a facility agreement (the “Facility Agreement”) with affiliates of
Deerfield Management Company, L.P., Deerfield Private Design Fund II, L.P. and
Deerfield Private Design International II, L.P., who we collectively refer to
as the Deerfield Funds, pursuant to which the Deerfield Funds 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. As
of the date of this prospectus, we have not drawn down on the Facility
Agreement.
In
connection with the execution of the Facility Agreement, on May 7, 2012, we
issued to the Deerfield Funds 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 the Deerfield
Funds 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 the Deerfield Funds 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 to the Deerfield
Funds warrants to purchase a total of 975,000 shares of our common stock. The
warrants expire seven years from their issuance.
- 7 -
We
have entered into a registration rights agreement with the Deerfield Funds (the
“Deerfield Registration Rights Agreement”) pursuant to which we agreed to file
a shelf registration statement for the resale of the shares of our common stock
underlying the warrants, which obligation we have satisfied with the filing of
this registration statement, and to keep such resale registration statement
effective until the Deerfield Funds have 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 Deerfield Registration Rights Agreement
also provides the Deerfield Funds with piggyback registration rights if we have
not kept this or another shelf registration statement relating to the shares
underlying the warrants effective.
Pipeline
Registration Rights.
We entered into a Subscription
Agreement (the “Subscription Agreement”), dated November 7, 2012, with Pipeline
Biomedical Holdings, Inc., or Pipeline, to purchase 490,471 shares of our
common stock. We also entered into a Registration Rights Agreement with
Pipeline (the “Pipeline Registration Rights Agreement”) dated November 7, 2012
pursuant to which we agreed to register the resale of the shares of common
stock issued to Pipeline pursuant to the Subscription Agreement and to use our
best efforts to keep the registration statement effective until the earlier of
(a) 120 days from the filing of a prospectus supplement, and (b) such time as
all such shares registered hereunder have been sold by Pipeline pursuant to and
in accordance with the registration statement.
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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- 8 -
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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 February 21, 2013, warrants exercisable for a total of 1,210,957 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.
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 194,059 shares of our common stock were
outstanding as of February 21, 2013.
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
February 21, 2013, 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 February 21, 2013, 143,157 warrants
were outstanding.
Warrants
to acquire 275,000 shares of our common stock, at an exercise price of $27.70
per share, were issued to Deerfield in connection with our entry into the
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 became 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 February 21,
2013, 275,000 warrants were outstanding.
- 9 -
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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- 10 -
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provide that
all vacancies, including newly created directorships, may, except as
otherwise required by law, be filled by the affirmative vote of a majority of
directors then in office, even if less than a quorum;
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divide our
board of directors into three classes;
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require that
any action to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and not be taken by written
consent;
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provide that
stockholders seeking to present proposals before a meeting of stockholders or
to nominate candidates for election as directors at a meeting of stockholders
must provide notice in compliance with applicable requirements;
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do not
provide for cumulative voting rights (therefore allowing the holders of a
majority of the shares of common stock entitled to vote in any election of
directors to elect all of the directors standing for election, if they should
so choose);
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provide that
special meetings of our stockholders may be called only by the board of
directors pursuant to a resolution adopted by a majority of the board of
directors; and
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provide that
stockholders will be permitted to amend our amended and restated bylaws only
upon receiving at least 66 2/3% of the votes entitled to be cast by holders
of all outstanding shares then entitled to vote generally in the election of
directors, voting together as a single class.
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Except
as otherwise provided, the amendment of any of these provisions would require
approval by the holders of at least a majority of our then outstanding common
stock, voting as a single class.
Nasdaq Global Select Market Listing
Our
common stock is listed on The Nasdaq Global Select Market under the symbol
“MAKO.”
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Continental Stock Transfer
and Trust Company. The transfer agent and registrar’s address is 17 Battery
Place, 8th Floor, New York, New York 10004.
- 11 -
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 shares of
common stock offered by this prospectus. This prospectus is a part of the
registration statement, but does not contain all of the information included in
the registration statement or the exhibits. You may read and copy the
registration statement and any other document that we file at the SEC’s public
reference room at 100 F Street, N.E., Washington D.C. 20549. You can call the
SEC at 1-800-SEC-0330 for further information on the operation of the public
reference room. You can also find our public filings with the SEC on the
internet at a web site maintained by the SEC located at http://www.sec.gov.
We
are “incorporating by reference” specified documents that we file with the SEC,
which means:
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incorporated
documents are considered part of this prospectus;
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we are
disclosing important information to you by referring you to those documents;
and
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information
we file with the SEC will automatically update and supersede information
contained in this prospectus.
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We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(i) after the date of the registration statement on Form S-3 filed under the
Securities Act with respect to the shares of common stock 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 shares of common stock pursuant to this prospectus:
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our Annual
Report on Form 10-K for the year ended December 31, 2012;
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our Current
Report on Form 8-K (excluding any portions thereof that are deemed to be
furnished and not filed) filed February 26, 2013; 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
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.
- 12 -
S
ELLING
STOCKHOLDERS
Except
as set forth below, information about selling stockholders, where applicable,
will be set forth in a prospectus supplement, in a post-effective amendment, or
in filings we make with the SEC under the Exchange Act that are incorporated by
reference.
Previously Registered Shares
Pipeline
.
An aggregate of 490,471 shares of our common stock were previously registered
under cover of this registration statement by the filing of a prospectus
supplement on November 14, 2012 for the account of Pipeline Biomedical
Holdings, Inc., who we refer to as Pipeline. All of the shares of common stock
being offered and sold under such prospectus are shares that were issued to
Pipeline in connection with our execution of a Subscription Agreement, dated
November 7, 2012, with Pipeline.
We
also entered into the Pipeline Registration Rights Agreement in connection with
the Subscription Agreement pursuant to which we agreed to register the resale
of the shares of common stock issued to Pipeline pursuant to the Subscription
Agreement and to use our best efforts to keep the registration statement
effective until the earlier of (a) 120 days from the filing of a prospectus
supplement, and (b) such time as all such shares registered hereunder have been
sold by Pipeline pursuant to and in accordance with the registration statement.
Additional information on our transaction with Pipeline is contained in our
current report on Form 8-K (File No. 001-33966), which was filed with the SEC
on November 7, 2012 and is incorporated by reference herein. This description
is qualified in its entirety by the complete provisions of the Subscription
Agreement, the Pipeline Registration Rights Agreement and the other documents
filed as exhibits to the previously filed prospectus and this prospectus.
The
shares offered by Pipeline pursuant to the previously filed prospectus may be
offered from time to time, in whole or in part, by Pipeline or its transferees,
pledgees or donees or their respective successors. The following table sets
forth the number of shares of common Pipeline beneficially owned prior to the
offering, the number of shares which may be offered for resale pursuant to the
previously filed prospectus and the number of shares and percentage that would
be owned by Pipeline after the completion of such offering. Pipeline may sell
some, all or none of its shares. We do not know how long Pipeline will hold the
shares before selling them, and we currently have no agreements, arrangements
or understandings with Pipeline regarding the sale of any of the shares. For
purposes of the table below, we have assumed Pipeline sells all of such shares.
This table is prepared based on information supplied to us by Pipeline and
reflects holdings as of the time of the prospectus filing on November 14, 2012.
We do not have information regarding Pipeline’s holdings of our common stock as
of a more recent date.
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Selling Stockholder
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Shares of
Common Stock
Beneficially
Owned Prior to the
Offering
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Shares of
Common
Stock Being
Offered
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Shares of Common Stock (1)
Beneficially Owned After
the Offering
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Shares
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Percentage
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Pipeline
Biomedical Holdings, Inc.
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490,471
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490,471
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0
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(1)
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Calculated
pursuant to Rule 13d-3 of the Securities Exchange Act. Under Rule 13d-3(d),
shares not outstanding which are subject to options, warrants, rights or
conversion privileges exercisable within 60 days are deemed outstanding for
the purpose of calculating the number and percentage owned by each other
person listed. As of February 21, 2013, we had 47,216,722 shares of common
stock outstanding.
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Deerfield
Funds.
An aggregate of 275,000 shares of common stock
were previously registered under cover of this registration statement for the
account of Deerfield Private Design Fund II, L.P. and Deerfield Private Design
International II, L.P., who we collectively refer to as the Deerfield Funds, by
the filing of a prospectus supplement on June 5, 2012. All of the shares of
common stock being offered and sold under the previously filed prospectus are
shares issuable upon the exercise or redemption of warrants held by the
Deerfield Funds that were issued in connection with the execution of a Facility
Agreement dated May 7, 2012, by and between us and the Deerfield Funds.
- 13 -
Under
the terms of the Facility Agreement, the Company has the flexibility, but is
not required, to draw down on the Facility Agreement in $10 million increments
at any time until May 15, 2013. The warrants were issued to the Deerfield Funds
on May 7, 2012 and are exercisable for up to an aggregate of 275,000 shares of
common stock, for a period of seven years from the date of issuance at a per
share exercise price of $27.70. The exercise price may be paid in cash or, at
the election of the holder of the warrant, pursuant to certain cashless
exercise provisions. In addition, the warrants may be redeemed in shares of
common stock that may be issued following certain major transactions, events of
default and upon the occurrence of certain events specified in the warrants.
The warrants may not be exercised by the respective holders to the extent that
the exercise or issuance would cause the holder’s and its affiliates’
beneficial ownership of our common stock, as determined in accordance with
Section 13(d) of the Securities Exchange Act, to exceed 9.985%.
We
also entered into the Deerfield Registration Rights Agreement in connection
with the Facility Agreement pursuant to which we agreed to register the resale
of any common stock issued upon exercise of the warrants and to use our best
efforts to keep the registration statement effective until the earlier of (a)
such time as all of the shares registered hereunder may be sold without
registration or restrictions under the Securities Act, and (b) such time as all
such shares registered hereunder have been sold by the Deerfield Funds.
Additional information on our transaction with the Deerfield Funds is contained
in our current report on Form 8-K (File No. 001-33966), which was filed with
the SEC on May 7, 2012, and our current report on Form 8-K (File No. 001-33966)
which was filed with the SEC on July 3, 2012 and are incorporated by reference
herein. This description is qualified in its entirety by the complete
provisions of the form of warrant, the Facility Agreement, the Deerfield
Registration Rights Agreement and other documents filed as exhibits to the
previously filed prospectus and this prospectus.
The
shares offered by the previously filed prospectus may be offered from time to
time, in whole or in part, by the Deerfield Funds or their transferees,
pledgees or donees or their respective successors. The following table sets
forth the number of shares of common stock the Deerfield Funds beneficially
owned prior to the offering, the number of shares which may be offered for
resale pursuant to the previously filed prospectus and the number of shares and
percentage that would be owned by the Deerfield Funds after the completion of
such offering. The Deerfield Funds may sell some, all or none of their shares.
We do not know how long the Deerfield Funds will hold the shares before selling
them, and we currently have no agreements, arrangements or understandings with
the Deerfield Funds regarding the sale of any of the shares. For purposes of
the table below, we have assumed that the Deerfield Funds exercised the
warrants in full pursuant to a cash exercise (without giving effect to any
limitations on exercise) and sell all of such shares. This table is prepared
based on information supplied to us by the Deerfield Funds and reflects
holdings as of June 5, 2012. We do not have information regarding the Deerfield
Funds’ holdings of our shares of common stock as of a more recent date.
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Selling Stockholder (1)
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Shares of
Common Stock
Beneficially
Owned Prior to the
Offering (2)
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Shares of
Common
Stock Being
Offered (2)
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Shares of Common Stock (3)
Beneficially Owned After
the Offering
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Shares
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Percentage
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Deerfield
Private Design Fund II, L.P.
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128,150
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128,150
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0
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|
|
|
|
|
Deerfield
Private Design International II, L.P.
|
|
|
146,850
|
|
|
146,850
|
|
|
0
|
|
|
0
|
|
|
|
|
|
|
|
(1)
|
James E. Flynn, with an
address at 780 Third Avenue, 37th Floor, New York, New York, 10017, has the
power to vote and dispose of the shares held by the selling stockholders.
|
|
|
|
|
|
|
(2)
|
Represents shares of common
stock issuable upon exercise of warrants. A total of 128,150 shares and
146,850 shares, respectively, are being registered for resale by Deerfield
Private Design Fund II, L.P. and Deerfield Private Design International II,
L.P., which includes shares issuable on exercise of warrants as well as
shares issuable upon redemption of those warrants following certain major
transactions or events of default, and upon the occurrence of certain events
specified in the warrants.
|
|
|
|
|
|
|
(3)
|
Calculated pursuant to Rule
13d-3 of the Securities Exchange Act. Under Rule 13d-3(d), shares not
outstanding which are subject to options, warrants, rights or conversion
privileges exercisable within 60 days are deemed outstanding for the purpose
of calculating the number and percentage owned by each other person listed.
As of February 21, 2013, we had 47,216,722 shares of common stock outstanding.
|
- 14 -
Potential Future Registration
Deerfield
Funds.
As discussed above, we have the right to draw
down on the Facility Agreement with the Deerfield Funds 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 the Deerfield Funds
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 the Deerfield Funds of the draw
notice. If we, in our discretion, elect to draw down the entire $50 million
under the Facility Agreement, we will issue to the Deerfield Funds additional
warrants to purchase a total of 700,000 shares of our common stock. If
additional warrants are issued to the Deerfield Funds, we will register the
resale of the shares of common stock issuable upon exercise of the warrants and
the number of shares of common stock to be registered on their behalf will be
set forth in a prospectus supplement, in a post-effective amendment or in
filings we make with the SEC under the Exchange Act that are incorporated by
reference into this prospectus.
P
LAN OF
DISTRIBUTION
We
are registering (or have previously registered) the shares of common stock
described in this prospectus on behalf of the selling stockholders. The term
selling stockholders, which as used herein includes pledgees, donees,
transferees or other successors-in-interest selling shares received from the
selling stockholders as a gift, pledge, partnership distribution or other
transfer after the date of this prospectus, may, from time to time, sell,
transfer or otherwise dispose of any or all of their shares of common stock or
interests in shares of common stock on any stock exchange, market or trading
facility on which the shares are traded or in private transactions. The selling
stockholders will pay any brokerage commissions and similar selling expenses
attributable to the sale of the shares. We will not receive any of the proceeds
from the sale of the shares by the selling stockholders. We will, however,
receive proceeds on the exercise of outstanding warrants by selling
stockholders for shares of common stock covered by this prospectus if the
warrants are exercised for cash. If the warrants are exercised in a cashless
exercise, we will not receive any proceeds from the exercise of the warrants.
These
dispositions may be at fixed prices, at prevailing market prices at the time of
sale, at prices related to the prevailing market price, at varying prices
determined at the time of sale, or at negotiated prices. To the extent any of
the selling stockholders gift, pledge or otherwise transfer the shares offered
hereby, such transferees may offer and sell the shares from time to time under
this prospectus, provided that this prospectus has been amended under Rule
424(b)(3) or other applicable provision of the Securities Act to include the
name of such transferee in the list of selling stockholders under this
prospectus.
The
selling stockholders may use any one or more of the following methods when
disposing of shares or interests therein:
|
|
|
|
|
|
•
|
ordinary
brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
|
|
|
|
|
|
|
•
|
block trades
in which the broker-dealer will attempt to sell the shares as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction;
|
|
|
|
|
|
|
•
|
purchases by
a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
|
|
|
|
•
|
an exchange
distribution in accordance with the rules of the applicable exchange;
|
|
|
|
|
|
|
•
|
privately
negotiated transactions;
|
|
|
|
|
|
|
•
|
short sales;
|
|
|
|
|
|
|
•
|
through the
writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
|
- 15 -
|
|
|
|
|
|
•
|
broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per share;
|
|
|
|
|
|
|
•
|
a
combination of any such methods of sale; and
|
|
|
|
|
|
|
•
|
any other
method permitted pursuant to applicable law.
|
The
selling stockholders may, from time to time, pledge or grant a security
interest in some or all of the shares of common stock owned by them and, if
they default in the performance of their secured obligations, the pledgees or
secured parties may offer and sell the shares of common stock, from time to
time, under this prospectus, or under an amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act amending the
list of selling stockholders to include the pledgee, transferee or other
successors in interest as selling stockholders under this prospectus.
In
connection with the sale of our common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The
aggregate proceeds to the selling stockholders from the sale of the common
stock offered by them will be the purchase price of the common stock less
discounts or commissions, if any. Each of the selling stockholders reserves the
right to accept and, together with their agents from time to time, to reject,
in whole or in part, any proposed purchase of common stock to be made directly
or through agents. We will not receive any of the proceeds from the offering of
securities by the selling stockholders. Upon any exercise of the warrants by
payment of cash, however, we will receive the exercise price of the warrants.
To
the extent required, the shares of our common stock to be sold, the names of
the selling stockholders, the respective purchase prices and public offering
prices, the names of any agents, dealer or underwriter, any applicable
commissions or discounts with respect to a particular offer will be set forth
in an accompanying prospectus supplement or, if appropriate, a post-effective amendment
to the registration statement that includes this prospectus.
In
order to comply with the securities laws of some states, if applicable, the
common stock may be sold in these jurisdictions only through registered or
licensed brokers or dealers. In addition, in some states the common stock may
not be sold unless it has been registered or qualified for sale or an exemption
from registration or qualification requirements is available and is complied
with.
We
have advised the selling stockholders that the anti-manipulation rules of
Regulation M under the Exchange Act may apply to sales of shares in the market
and to the activities of the selling stockholders and their affiliates. In
addition, we will make copies of this prospectus (as it may be supplemented or
amended from time to time) available to the selling stockholders for the
purpose of satisfying the prospectus delivery requirements of the Securities
Act. The selling stockholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We
have agreed to indemnify the selling stockholders against liabilities,
including liabilities under the Securities Act and state securities laws,
relating to the registration of the shares described in this prospectus.
We
have agreed with the selling stockholders to keep the registration statement
that includes this prospectus effective. See “Description of Capital Stock –
Common Stock” for a description of the applicable registration rights.
- 16 -
The
selling stockholders and any broker dealers that act in connection with the
sale of the shares might be deemed to be “underwriters” as the term is defined
in Section 2(11) of the Securities Act. Consequently, any commissions received
by these broker dealers and any profit on the resale of the shares sold by them
while acting as principals might be deemed to be underwriting discounts or commissions
under the Securities Act. Because the selling stockholders may be deemed to be
“underwriters” as defined in Section 2(11) of the Securities Act, the selling
stockholders may be subject to the prospectus delivery requirements of the
Securities Act.
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act,
provided that they meet the criteria and conform to the requirements of that
Rule.
If
we, in our discretion, elect to draw down the entire $50 million under the
Facility Agreement with the Deerfield Funds, we will issue to the Deerfield
Funds additional warrants to purchase a total of 700,000 shares of our common
stock. If additional warrants are issued to the Deerfield Funds, we will
register the resale of the shares of common stock issuable upon exercise of the
warrants and the number of shares of common stock to be registered on their
behalf, as well as the specific plan of distribution with respect to the sale
of such shares (to the extent such plan of distribution is different from the
selling stockholders plan of distribution set forth in this prospectus), will
be set forth in a prospectus supplement, in a post-effective amendment or in
filings we make with the SEC under the Exchange Act that are incorporated by
reference into this prospectus.
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, 2012, and the
effectiveness of MAKO Surgical Corp.’s internal control over financial
reporting as of December 31, 2012, 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 SEC) given
on the authority of such firm as experts in accounting and auditing.
- 17 -
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
|
|
Item 14.
|
Other Expenses of Issuance and Distribution.
|
The
aggregate estimated expenses, other than underwriting discounts and
commissions, in connection with the sale of the securities being registered
hereby are currently anticipated to be as follows (all amounts are estimated
except the SEC registration fee). All expenses of the offering will be paid by
MAKO Surgical Corp.
|
|
|
|
|
|
|
|
|
Amount
|
|
|
SEC
registration fee
|
|
$
|
0
|
(1)
|
|
Legal fees
and expenses
|
|
$
|
20,000
|
|
|
Accounting
fees and expenses
|
|
$
|
20,000
|
|
|
Miscellaneous (including any applicable
listing fees, rating agency fees, trustee and transfer agent’s fees and
expenses)
|
|
$
|
3,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
43,000
|
|
|
|
|
|
(1)
|
The registration
fee for the securities covered by this Post-Effective Amendment No. 2 has
been previously paid.
|
|
|
|
|
Item 15.
|
Indemnification of Directors and Officers.
|
The
Registrant is incorporated under the laws of the State of Delaware. Section 145
of the Delaware General Corporation Law provides that a Delaware corporation
may indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such person as an officer, director, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation’s best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
illegal. A Delaware corporation may indemnify any persons who are, or are
threatened to be made, a party to any threatened, pending or completed action
or suit by or in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit
provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation’s best interests except
that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Expenses incurred by
any officer or director in defending any such action, suit or proceeding in
advance of its final disposition shall be paid by us upon delivery to us of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified by us. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him or her against the expenses which
such officer or director has actually and reasonably incurred. The Registrant’s
third amended and restated certificate of incorporation and fourth amended and
restated bylaws provide for the indemnification of its directors and officers
to the fullest extent permitted under the Delaware General Corporation Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to
provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duties as a director, except for
liability for any:
|
|
|
|
|
|
•
|
transaction
from which the director derives an improper personal benefit,
|
II-1
|
|
|
|
|
|
•
|
act or
omission not in good faith or that involves intentional misconduct or a
knowing violation of law,
|
|
|
|
|
|
|
•
|
unlawful
payment of dividends or redemption of shares, or
|
|
|
|
|
|
|
•
|
breach of a
director’s duty of loyalty to the corporation or its stockholders.
|
The
Registrant’s third amended and restated certificate of incorporation includes
such a provision.
Section
174 of the Delaware General Corporation Law provides, among other things, that
a director, who willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption, may be held liable for
such actions. A director who was either absent when the unlawful actions were
approved, or dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered in the books containing minutes of the
meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful acts.
As
permitted by the Delaware General Corporation Law, the Registrant has entered
into indemnity agreements with each of its directors and executive officers
that require the Registrant to indemnify such persons against any and all
expenses (including attorneys’ fees), witness fees, damages, judgments, fines,
settlements and other amounts incurred (including expenses of a derivative
action) in connection with any action, suit or proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was a director, an officer or an employee of the
Registrant or any of its affiliated enterprises, provided that such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the Registrant’s best interests and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At
present, there is no pending litigation or proceeding involving any of the
Registrant’s directors or executive officers as to which indemnification is
required or permitted, and the Registrant is not aware of any threatened
litigation or proceeding that may result in a claim for indemnification.
The
Registrant has an insurance policy covering its officers and directors with
respect to certain liabilities, including liabilities arising under the
Securities Act or otherwise.
|
|
|
|
Item 16.
|
Exhibits and Financial Statement Schedules.
|
The
exhibits listed in the accompanying Exhibit Index are filed or incorporated by
reference as part of this Registration Statement.
The
undersigned Registrant hereby undertakes:
|
|
|
|
|
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
|
|
|
|
|
|
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
|
|
|
|
|
|
(ii) To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission (the
“Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement; and
|
II-2
|
|
|
|
|
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
|
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|
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|
|
provided, however
, that paragraphs (i), (ii)
and (iii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act that are incorporated by
reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
|
|
|
|
|
|
(2) That,
for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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|
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
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|
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
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|
|
(i) If
the Registrant is relying on Rule 430B:
|
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|
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
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(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by Section 10(a) of the Securities Act
shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which
the prospectus relates, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Provided, however
, that no statement
made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior to
such effective date.
|
|
|
|
|
|
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and
included in the registration statement as of the date it is first used after
effectiveness.
Provided, however
,
that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior to
such date of first use.
|
II-3
The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of its annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the issue
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 2
to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fort Lauderdale, State of Florida, on
this 28
th
day of February, 2013.
|
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|
MAKO
SURGICAL CORP.
|
|
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|
By:
|
/s/ Maurice
R. Ferré
|
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|
|
Maurice R.
Ferré, M.D.
|
|
|
|
|
President, Chief Executive Officer and
Chairman of the Board
|
Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 2 to Registration Statement has been signed by the following
persons in the capacities indicated below on February 28, 2013.
|
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|
Signature
|
|
Title
|
|
|
|
|
|
|
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|
|
/s/ Maurice
R. Ferré
|
|
President,
Chief Executive Officer and Chairman of the Board
|
|
Maurice R.
Ferré, M.D.
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
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|
|
/s/ Fritz L.
LaPorte
|
|
Senior Vice
President of Finance and Administration, Chief
|
|
Fritz L.
LaPorte
|
|
Financial
Officer and Treasurer (Principal Financial and
|
|
|
|
Accounting
Officer)
|
|
|
|
|
|
*
|
|
Director
|
|
S. Morry
Blumenfeld, Ph.D.
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
Christopher
C. Dewey
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
Charles W.
Federico
|
|
|
|
|
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|
|
*
|
|
Director
|
|
John G.
Freund, M.D.
|
|
|
|
|
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|
|
*
|
|
Director
|
|
Frederic H.
Moll, M.D.
|
|
|
|
|
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|
*
|
|
Director
|
|
Richard R.
Pettingill
|
|
|
|
|
|
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*
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Director
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William D.
Pruitt
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*By:
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/s/ Maurice
R. Ferré
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Maurice R.
Ferré (Attorney-in-fact)
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S-1
EXHIBIT INDEX
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Exhibit
Number
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Document Description
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(4.1)
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Third
Amended and Restated Certificate of Incorporation of MAKO Surgical Corp.,
dated February 20, 2008 (1)
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(4.2)
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Fourth Amended
and Restated Bylaws of MAKO Surgical Corp. effective October 31, 2008 (2)
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(4.3)
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Form of
Warrant to purchase shares of common stock of MAKO Surgical Corp. (3)
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(4.3.1)
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Form of
Amendment to Warrant to purchase shares of common stock of MAKO Surgical
Corp. (4)
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(4.4)
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Facility
Agreement by and among the Registrant, Deerfield Private Design Fund II,
L.P., and Deerfield Private Design International II, L.P., dated May 7, 2012
(5)
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(4.4.1)
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Amendment to
Facility Agreement, dated May 7, 2012, by and among MAKO Surgical Corp.,
Deerfield Private Design Fund II, L.P. and Deerfield Private Design
International II, L.P. (6)
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(4.5)
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Registration
Rights Agreement by and among Registrant, Deerfield Private Design Fund II,
L.P., and Deerfield Private Design International II, L.P., dated May 7, 2012
(7)
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(4.6)
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Subscription
Agreement, dated November 7, 2012, by and between MAKO Surgical Corp. and
Pipeline Biomedical Holdings, Inc. (8)
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(4.7)
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Registration
Rights Agreement, dated November 7, 2012, by and between MAKO Surgical Corp.
and Pipeline Biomedical Holdings, Inc. (9)
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(5.1)
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Opinion of
Foley & Lardner LLP (including consent of counsel) (10)
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(5.1.1)
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Opinion of
Foley & Lardner LLP (including consent of counsel) (11)
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(5.1.2)
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Opinion of
Foley & Lardner LLP (including consent of counsel) (12)
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(23.1)
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Consent of
Foley & Lardner LLP (filed as part of Exhibits (5.1, 5.1.1 and 5.1.2)).
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(23.2)
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Consent of
Independent Registered Public Accounting Firm
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(24)
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Powers of
Attorney (previously filed)
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(1)
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Incorporated
by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K
for the year ended December 31, 2007 filed with the SEC on March 31, 2008.
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(2)
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Incorporated
by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on October 30, 2008.
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(3)
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Incorporated
by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on May 7, 2012.
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(4)
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Incorporated
by reference to Exhibit 5.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on July 3, 2012.
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(5)
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Incorporated
by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on May 7, 2012.
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(6)
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Incorporated
by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on July 3, 2012.
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(7)
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Incorporated
by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K
filed with the SEC on May 7, 2012.
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(8)
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Incorporated
by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on November 7, 2012.
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(9)
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Incorporated
by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K
filed with the SEC on November 7, 2012.
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(10)
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Incorporated
by reference to Exhibit 5.1 to the Registrant’s Post-Effective Amendment No.
1 to the Registration Statement on Form S-3 (File No. 333-181277) filed with
the SEC on February 14, 2013.
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(11)
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Incorporated
by reference to Exhibit 5.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on June 5, 2012.
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(12)
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Incorporated
by reference to Exhibit 5.1 to the Registrant’s Current Report on Form 8-K
filed with the SEC on November 14, 2012.
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Documents incorporated by reference to
filings made by MAKO Surgical Corp. under the Exchange Act are under SEC File
No. 001-33966.
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