Dr. Ferré has
pledged 125,000 shares to a third party lender as collateral to secure any
amounts that may become outstanding under a personal loan.
(7) Gerald A.
Brunk, who has served as one of our directors since October 2006, is Senior
Vice President/Managing Director of Lumira Capital Corp. The general
partner of Lumira Capital I Limited Partnership (LC I) is Lumira Capital I
(GP) Inc. The general partner of Lumira Capital I Quebec Limited
Partnership (LCIQ) is Lumira Capital I (QGP) Inc. The general partner of
MLII Co-Investment Fund NC Limited Partnership (MLII.NC) MLII (NCGP) Inc.
Lumira Capital Management Corp. (Lumira Management), a subsidiary of
Lumira Capital Corp., may be deemed to share voting and investment power
over the shares held by LC I pursuant to a management agreement with LC I.
Lumira Management also provides services to each of LCIQ and MLII.NC.
The directors of Lumira Capital Corp. are Michael Burns, Kenneth Horton,
James Oborne and Peter van der Velden. The directors
of Lumira Management, Lumira Capital I (GP) Inc., and MLII
(NCGP) Inc. are Stephen Cummings and Peter van der Velden. The directors
of Lumira Capital I (QGP) Inc. are Bernard Coupal, Murray Ducharme,
Maurice Forget, Jean Page and Peter van der Velden. Lumira Capital I (GP)
Inc., Lumira Capital I (QGP) Inc., MLII (NCGP) Inc. and each of the
individuals may be deemed to share voting and investment power over these
shares. Lumira Capital I (GP) Inc., Lumira Capital I (QGP) Inc., MLII (NCGP)
Inc., Lumira Management, Lumira Capital Corp., Mr. Brunk and each of
the other individuals disclaim beneficial ownership of such shares, except to
the extent of its, his or her pecuniary interest.
(8) Marcelo G. Chao, who has served as one of our
directors since February 2007, is a Managing Director of The Exxel Group, and
affiliate of MK Investment Company (MK Investment). The directors of MK
Investment are Francisco Beramendi, Diego Muñoz and Alfredo Arocena.
Mr. Chao and the directors of MK Investment may be deemed to share voting
and investment power over the shares held by this entity. Each of these
individuals disclaims beneficial ownership of such shares, except to the extent
of his or her pecuniary interest.
(9) S. Morry Blumenfeld, Ph.D., who has served as one of
our directors since July 2005, is the founder of MediTech Advisors LLC and Meditech
Advisors Management LLC, a member of Ziegler MediTech Partners LLC, which is
the sole general partner of Ziegler MediTech Equity Partners LP. The partners
of MediTech Advisors LLC are Eitan Machover, Samuel Cubac, Grosvenor LLC and
Allandale Ltd. The members of Grosvenor LLC are Dr. Blumenfeld and certain
of his family members. The general partner of Ziegler MediTech Equity Partners
LP is Ziegler MediTech Partners, LLC. The board of managers of Ziegler MediTech
Partners LLC consists of Dr. Blumenfeld, Eitan Machover, Sam Cubac, S.
Charles OMeara, Donald I. Grande and Thomas S. Ross. The partners of MediTech
Advisors LLC and Dr. Blumenfeld and the other directors of Ziegler
MediTech Partners LLC may be deemed to share voting and investment power over the
shares held by MediTech Advisors LLC and Ziegler MediTech Equity Partners LP.
Each of these individuals disclaims beneficial ownership of such shares, except
to the extent of his or her pecuniary interest.
(10) Does not
include 812,377 shares of common stock held by Aperture Capital II, L.P.
Aperture Venture Partners LLC is the general partner of Aperture Capital II,
L.P. and Aperture Capital III, L.P. Paul E. Tierney, Jr., Thomas P. Cooper,
Eric H. Sillman and Matthew S. Tierney are the members of Aperture Venture
Partners LLC, and may be deemed to share voting and investment power over the
shares held by each of Aperture Capital II, L.P. and Aperture Capital III, L.P.
Each of these individuals disclaims beneficial ownership of such shares, except
to the extent of his pecuniary interest.
(11) Alta Partners Management VIII, LLC (APM
VIII), the general partner of Alta Partners VIII, L.P. (AP VIII), and Daniel
Janney, Guy Nohra and Farah Champsi, the managing directors of APM VIII, may be
deemed to share voting and investment power over the shares held by AP VIII.
APM VIII and each of its managing directors disclaim beneficial ownership of
the shares, except to the extent of its, his or her pecuniary interest.
(12) John
Savarese, M.D., who has served as one of our directors since October 2008,
Daniel K. Turner III, Howard D. Palefsky and Manish Chapekar are the managers
of Montreux Equity Management IV, LLC (MEM IV), the sole general partner of
each of Montreux Equity Partners IV, L.P. and Montreux IV Associates IV, L.L.C.
and may be deemed to share voting and investment power over the shares held by
each of Montreux Equity Partners IV, L.P. and Montreux IV Associates, L.L.C.
Each of these individuals disclaims beneficial ownership of such shares, except
to the extent of his pecuniary interest.
(13) John
Freund, M.D., who has served as one of our directors since October 2008, is a
Managing Director of Skyline Venture Management V, LLC, the general partner of
Skyline Venture Partners V, L.P., and may be deemed to share voting and
investment power over the shares held by Skyline Venture Partners V, L.P. Dr.
Freund disclaims beneficial ownership of such shares, except to the extent of
his pecuniary interest.
13
P
LAN OF DISTRIBUTION
The selling
stockholders may, from time to time, sell any or all of their shares of common
stock on any stock exchange, market or trading facility on which the shares are
traded or in private transactions. These sales may be at fixed or negotiated
prices. The selling stockholders may use any one or more of the following
methods when selling shares:
|
|
|
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;
|
|
|
|
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 also sell shares under Rule 144 under the Securities Act of
1933, as amended, or the Securities Act, if available, rather than under this
prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved. Any profits on the resale
of shares of common stock by a broker-dealer acting as principal might be
deemed to be underwriting discounts or commissions under the Securities Act.
Discounts, concessions, commissions and similar selling expenses, if any,
attributable to the sale of shares will be borne by a selling stockholder. The
selling stockholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares if liabilities
are imposed on that person under the Securities Act.
The selling
stockholders may from time to time pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from time to time under this
prospectus after we have filed a post-effective amendment or supplement to this
prospectus under the Securities Act supplementing or amending the list of
selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
The selling
stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this prospectus
and may sell the shares of common stock from time to time under this prospectus
after we have filed a post-effective amendment or supplement to this prospectus
under the Securities Act supplementing or amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
14
The selling
stockholders and any broker-dealers or agents that are involved in selling the
shares of common stock may be deemed to be underwriters within the meaning of
the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares of common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
We are
required to pay all fees and expenses incident to the registration of the shares
of common stock. We have agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under
the Securities Act.
The selling
stockholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers
regarding the sale of their shares of common stock, nor is there an underwriter
or coordinating broker acting in connection with a proposed sale of shares of
common stock by any selling stockholder. If we are notified by any selling
stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares of common stock, if required, we will file
a supplement to this prospectus. If the selling stockholders use this
prospectus for any sale of the shares of common stock, they will be subject to
the prospectus delivery requirements of the Securities Act.
The
anti-manipulation rules of Regulation M under the Securities Exchange Act of
1934 may apply to sales of our common stock and activities of the selling
stockholders.
15
D
ESCRIPTION OF CAPITAL STOCK
Our
authorized capital stock consists of 135,000,000 shares of common stock, par
value $0.001 per share, and 27,000,000 shares of preferred stock, par value
$0.001 per share.
The
following is a summary of the rights of our common stock and preferred stock.
This summary is not complete and is qualified in its entirety by reference to
applicable Delaware law, our third amended and restated certificate of
incorporation and our fourth amended and restated bylaws. See Where You Can
Find More Information.
Common Stock
Outstanding
Shares and Voting Rights
. As of March 2, 2009, 24,984,927 shares of
our common stock were outstanding. Each holder of common stock is entitled to
one vote for each share of common stock held on all matters submitted to a vote
of the stockholders, including the election of directors. Our third amended and
restated certificate of incorporation and fourth amended and restated bylaws do
not provide for cumulative voting rights. Because of this, the holders of a
majority of the shares of common stock entitled to vote in any election of
directors can elect all of the directors standing for election, if they should
so choose.
Dividends
.
Subject to preferences that may be applicable to any then outstanding preferred
stock, the holders of our outstanding shares of common stock are entitled to
receive dividends, if any, as may be declared from time to time by our board of
directors out of legally available funds.
Liquidation
.
In the event of our liquidation, dissolution or winding up, holders of common
stock will be entitled to share ratably in the net assets legally available for
distribution to stockholders after the payment of all of our debts and other
liabilities, subject to the satisfaction of any liquidation preference granted
to the holders of any outstanding shares of preferred stock.
Rights and
Preferences
. Holders of our common stock have no preemptive,
conversion or subscription rights, and there are no redemption or sinking fund
provisions applicable to our common stock. The rights, preferences and
privileges of the holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of our preferred
stock that we may designate and issue in the future.
Fully Paid
and Nonassessable
. All of our outstanding shares of common stock are
fully paid and nonassessable.
Preferred Stock
Under
the third amended and restated certificate of incorporation, our board of
directors has the authority, without further action by the stockholders, to
issue up to 27,000,000 shares of preferred stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, to fix the rights, preferences and privileges of the shares of each
wholly unissued series and any qualifications, limitations or restrictions thereon,
and to increase or decrease the number of shares of any such series, but not
below the number of shares of such series then outstanding.
Our
board of directors may authorize the issuance of preferred stock with voting or
conversion rights that could adversely affect the voting power or other rights
of the holders of the common stock. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, have the effect of delaying,
deferring or preventing a change in our control and may adversely affect the
market price of the common stock and the voting and other rights of the holders
of common stock. We have no current plans to issue any shares of preferred
stock.
16
Warrants
As
of March 2, 2009, warrants exercisable for a total of 2,075,620 shares of our
common stock were outstanding. Of these, warrants to purchase 190,457 shares of
our common stock were issued to Z-KAT, Inc., our predecessor company, in
exchange for the license of intellectual property and transfer of other assets.
Pursuant to an exchange agreement between us, Z-KAT and certain creditors of
Z-KAT, Z-KAT transferred the warrants for our common stock and a certain
portion of the transferred Series A convertible preferred stock to the
creditors in exchange for such creditors cancellation of outstanding debt.
Warrants
to purchase 272,259 shares of our common stock were purchased by purchasers of
our Series A convertible preferred stock for cash consideration of $0.03 per
share. These warrants are immediately exercisable at an exercise price of $3.00
per share and will expire ten years after the date of issuance. These warrants
have a net exercise provision under which the holder may, in lieu of payment of
the exercise price in cash, surrender the warrant and receive a net amount of
shares of common stock based on the fair market value of our common stock at
the time of exercise of the warrant after deduction of the aggregate exercise
price. These warrants also contain provisions for the adjustment of exercise
price and the aggregate number of shares issuable upon the exercise of the
warrants in the event of stock dividends, stock splits or stock combinations,
recapitalizations, reorganizations or reclassifications.
Warrants
to acquire 1,290,323 shares of our common stock, at an exercise price of $7.44
per share, were purchased by certain accredited investors in connection with
their purchase of shares of our common stock in October 2008 for cash
consideration of $0.125 per warrant. These warrants become exercisable on April
29, 2009, will be exercisable for cash or by net exercise and have a term of
seven years. Certain of the investors also received a second tranche of
warrants to purchase 322,581 shares of our common stock, at an exercise price
of $6.20 per share, that will become exercisable upon the earlier of our
exercise of a call right to require certain of the investors to purchase
additional warrants and shares of our common stock and the expiration of the
call right. In addition to the warrants purchased upon exercise of the call
right, these investors may receive an incremental number of additional warrants
with the same exercise price if certain conditions are met. The additional
warrants purchased and the incremental warrants will be immediately
exercisable, if they are issued. The warrants issued in October 2008 contain,
and the additional or incremental warrants will contain, provisions for the
adjustment of exercise price and the aggregate number of shares issuable upon
the exercise of the warrants in the event of stock dividends, stock splits or
stock combinations, recapitalizations, reorganizations or reclassifications.
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:
|
|
|
|
|
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;
|
|
|
|
|
|
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
|
|
|
|
|
|
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.
|
17
|
|
|
Section
203 generally defines a business combination to include:
|
|
|
|
any merger
or consolidation involving the corporation and the interested stockholder;
|
|
|
|
|
|
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;
|
|
|
|
|
|
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;
|
|
|
|
|
|
subject to
exceptions, any transaction involving the corporation with the effect of
increasing the proportionate share of stock of the corporation; or
|
|
|
|
|
|
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.
|
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, which will
become effective upon the completion of this offering, 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:
|
|
|
|
|
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;
|
|
|
|
|
|
provide that
the authorized number of directors may be changed only by resolution of the
board of directors;
|
|
|
|
|
|
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;
|
|
|
|
|
|
divide our
board of directors into three classes;
|
|
|
|
|
|
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;
|
|
|
|
|
|
provide that
stockholders seeking to present proposals before a meeting of stockholders or
to nominate candidates for election as directors at a meeting of stockholders
must provide notice in writing in a timely manner, and also specify
requirements as to the form and content of a stockholders notice;
|
18
|
|
|
|
|
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);
|
|
|
|
|
|
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
|
|
|
|
|
|
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.
|
Except
as otherwise provided, the amendment of any of these provisions would require
approval by the holders of at least a majority of our then outstanding common
stock, voting as a single class.
NASDAQ Global Market
Listing
Our
common stock is listed on The NASDAQ Global Market under the symbol MAKO.
Transfer Agent and
Registrar
The
transfer agent and registrar for our common stock is BNY Mellon Shareowner
Services. The transfer agent and registrars address is 480 Washington Blvd.,
Jersey City, New Jersey, 07310.
L
EGAL MATTERS
Foley
& Lardner LLP will pass upon the validity of the common stock being offered
by this prospectus.
E
XPERTS
The
financial statements of MAKO Surgical Corp. appearing in MAKO Surgical Corp.s
Annual Report (Form 10-K) for the year ended December 31, 2008, have been
audited by Ernst & Young LLP, independent registered public accounting
firm, as set forth in their report thereon, included therein, and incorporated
herein by reference. Such financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
W
HERE YOU CAN FIND MORE
INFORMATION
We
file annual, quarterly and current reports, proxy statements and other
information with the SEC. We have also filed an initial post-effective
amendment on Form S-3, including exhibits, to our registration statement on
Form S-1 under the Securities Act with respect to the shares of common stock
offered by this prospectus. This prospectus is a part of the post-effective
amendment, but does not contain all of the information included in the
post-effective amendment or the exhibits. Some items are omitted in accordance
with the rules and regulations of the SEC. You may read and copy the
registration statement and any other document that we file at the SECs 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:
|
|
|
|
|
incorporated
documents are considered part of this prospectus; and
|
|
|
|
|
|
we are
disclosing important information to you by referring you to those documents.
|
|
|
|
We
incorporate by reference the documents listed below:
|
19
|
|
|
|
|
our Annual
Report on Form 10-K for the year ended December 31, 2008;
|
|
|
|
|
|
our Current
Reports on Form 8-K filed February 13, 2009, February 20, 2009 and March 10, 2009; and
|
|
|
|
|
|
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.
|
All documents
we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this initial post-effective
amendment on Form S-3 to our registration statement on Form S-1, of which this
prospectus is a part, and prior to the effectiveness of such post-effective
amendment, as well as subsequent to the date of this prospectus and prior to
the termination of this offering, shall be deemed to be incorporated by
reference into this prospectus and to be part of this prospectus from the date
of the filing of the documents with the SEC.
We
will provide to each person to whom a prospectus is delivered a copy of any of
the filings incorporated by reference into this prospectus, at no cost, upon
written or oral request directed to us at the following address or telephone
number:
|
|
|
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.
20
12,980,951
Shares of Common Stock
MAKO
Surgical Corp.
Prospectus
, 2009
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
|
|
Item
14.
|
Other
Expenses of Issuance and Distribution.
|
The
aggregate estimated expenses in connection with the sale of the shares of
common stock being registered hereby are currently anticipated to be as follows
(all amounts are estimated). All expenses of the offering will be paid by the
MAKO Surgical Corp. (the Registrant).
|
|
|
|
|
|
|
Amount
|
|
|
|
|
|
Securities
and Exchange Commission registration fee
|
|
$
|
4,403.00
|
(1)
|
Printing
expenses
|
|
|
1,000.00
|
|
Legal fees
and expenses
|
|
|
20,000.00
|
|
Accounting
fees and expenses
|
|
|
20,000.00
|
|
Miscellaneous
|
|
|
4,597.00
|
|
|
|
|
|
|
Total
|
|
$
|
50,000.00
|
|
|
|
|
|
|
|
|
(1)
|
Estimated in
accordance with Rule 457(c) under the Securities Act of 1933.
|
|
|
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 corporations best
interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was illegal. A Delaware
corporation may indemnify any persons who are, or are threatened to be made, a
party to any threatened, pending or completed action or suit by or in the right
of the corporation by reason of the fact that such person was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporations best interests except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Expenses incurred by any
officer or director in defending any such action, suit or proceeding in advance
of its final disposition shall be paid by us upon delivery to us of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified by us. Where an officer or director is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him or her against the expenses which
such officer or director has actually and reasonably incurred. The Registrants
third amended and restated certificate of incorporation and fourth amended and
restated bylaws provide for the indemnification of our 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:
II-1
|
|
|
|
|
transaction
from which the director derives an improper personal benefit,
|
|
|
|
|
|
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
directors duty of loyalty to the corporation or its stockholders.
|
The
Registrants third amended and restated certificate of incorporation includes
such a provision.
Section
174 of the Delaware General Corporation Law provides, among other things, that
a director, who willfully or negligently approves of an unlawful payment of
dividends or an unlawful stock purchase or redemption, may be held liable for
such actions. A director who was either absent when the unlawful actions were
approved, or dissented at the time, may avoid liability by causing his or her
dissent to such actions to be entered in the books containing minutes of the
meetings of the board of directors at the time such action occurred or
immediately after such absent director receives notice of the unlawful acts.
As permitted
by the Delaware General Corporation Law, the Registrant has entered into
indemnity agreements with each of its directors and executive officers that
require the Registrant to indemnify such persons against any and all expenses
(including attorneys fees), witness fees, damages, judgments, fines,
settlements and other amounts incurred (including expenses of a derivative
action) in connection with any action, suit or proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was a director, an officer or an employee of the
Registrant or any of its affiliated enterprises, provided that such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the Registrants best interests and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At present,
there is no pending litigation or proceeding involving any of the Registrants
directors or executive officers as to which indemnification is required or
permitted, and the Registrant is not aware of any threatened litigation or
proceeding that may result in a claim for indemnification.
The Registrant
has an insurance policy covering its officers and directors with respect to
certain liabilities, including liabilities arising under the Securities Act or
otherwise.
|
|
Item 16.
|
Exhibits and Financial Statement Schedules.
|
The
exhibits listed in the accompanying Exhibit Index are filed (except where
otherwise indicated) 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 of 1933;
|
|
|
|
|
|
|
(ii)
|
To reflect
in the prospectus any facts or events which, individually or together,
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
|
II-2
|
|
|
|
|
|
|
(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 pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration
statement;
|
|
|
|
|
|
|
(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 this registration statement;
|
|
|
|
|
|
|
provided, however,
that paragraphs (1)(i), (ii) and (iii) do not apply if the registration
statement is on Form S-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
|
|
|
|
|
|
(2)
|
That, for
the purpose of determining any liability under the Securities Act of 1933,
each 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.
|
|
|
|
|
|
(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.
|
|
|
|
|
|
(4)
|
That, for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser, 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.
|
|
|
|
|
|
(5)
|
That, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrants annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be the initial
bona fide
offering
thereof.
|
|
|
|
|
|
(6)
|
Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the claim has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
|
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant has duly
caused this post-effective amendment on Form S-3 to its registration statement
on Form S-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, on the 12
th
of March, 2009.
|
|
|
|
MAKO
SURGICAL CORP.
|
|
|
|
|
By:
|
/s/ Maurice
R. Ferré
|
|
|
Maurice R.
Ferré, M.D.
|
|
|
President,
Chief Executive Officer and Chairman of
the Board
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this amendment
to the registration statement has been signed by the following persons in the
capacities indicated below on March 12, 2009.
|
|
|
|
|
|
|
|
|
Signature
|
|
|
|
Title
|
|
|
/s/ Maurice
R. Ferré
|
|
Chief
Executive Officer, President and Chairman of the Board
|
Maurice R.
Ferré, M.D.
|
|
(Principal Executive
Officer)
|
|
|
|
/s/ Fritz L.
LaPorte
|
|
Senior Vice
President of Finance and Administration, Chief Financial Officer
|
Fritz L.
LaPorte
|
|
and
Treasurer (Principal Financial Officer and Principal Accounting Officer)
|
|
|
|
*
|
|
|
Director
|
S. Morry
Blumenfeld, Ph.D.
|
|
|
|
|
|
*
|
|
|
Director
|
Gerald A.
Brunk
|
|
|
|
|
|
*
|
|
|
Director
|
Marcelo G.
Chao
|
|
|
|
|
|
*
|
|
|
Director
|
Christopher
C. Dewey
|
|
|
|
|
|
*
|
|
|
Director
|
Charles W.
Federico
|
|
|
|
|
|
*
|
|
|
Director
|
John G.
Freund, M.D.
|
|
|
|
|
|
*
|
|
|
Director
|
Frederic H.
Moll, M.D.
|
|
|
|
|
|
*
|
|
|
Director
|
William D.
Pruitt
|
|
|
|
|
|
*
|
|
|
Director
|
John J.
Savarese, M.D.
|
|
|
|
|
|
* By:
|
/s/ Maurice
R. Ferré
|
|
|
Maurice R.
Ferré, M.D.
|
|
|
Attorney-in-fact
|
|
S-1
EXHIBIT INDEX
|
|
|
|
|
Exhibit
Number
|
|
|
Document Description
|
|
|
|
|
4.1
|
|
Second
Amended and Restated Registration Rights Agreement, dated February 6, 2007,
between the Registrant and certain of its stockholders (1)
|
|
|
|
4.2
|
|
Amendment to
Second Amended and Restated Registration Rights Agreement, dated as of
October 28, 2008 (2)
|
|
|
|
4.3
|
|
Securities
Purchase Agreement, dated as of October 28, 2008, by and among the Registrant
and the Investors named therein (2)
|
|
|
|
4.4
|
|
Form of
Warrant (2)
|
|
|
|
4.5
|
|
Form of Call
Warrant (2)
|
|
|
|
4.6
|
|
Form of
Second Closing Warrant (2)
|
|
|
|
4.7
|
|
Form of Call
Exercise Warrant (2)
|
|
|
|
4.8
|
|
Form of
Voting Agreement (2)
|
|
|
|
5
|
|
Opinion of
Foley & Lardner LLP (including consent of counsel) (3)
|
|
|
|
23.1
|
|
Consent of
Foley & Lardner LLP (filed as part of Exhibit (5)) (3).
|
|
|
|
23.2
|
|
Consent of
Ernst & Young LLP, Independent Registered Public Accounting Firm (4).
|
|
|
|
24
|
|
Power of
Attorney (3).
|
Documents
incorporated by reference to filings made by MAKO Surgical Corp. under the
Securities Exchange Act of 1934, as amended, are under Securities and Exchange
Commission (SEC) File No. 001-33966.
|
|
|
|
|
(1)
|
Incorporated
by reference to the Registrants Registration Statement on Form S-1, as
amended, filed with the SEC on September 19, 2007 (Registration No.
333-146162).
|
|
|
(2)
|
Incorporated
by reference to the Registrants Current Report on Form 8-K filed with the
SEC on October 30, 2008.
|
|
|
(3)
|
Previously
filed.
|
|
|
(4)
|
Filed
herewith.
|
E-1
Mako Surgical Corp. (MM) (NASDAQ:MAKO)
Historical Stock Chart
From Jun 2024 to Jul 2024
Mako Surgical Corp. (MM) (NASDAQ:MAKO)
Historical Stock Chart
From Jul 2023 to Jul 2024