As filed with the Securities and Exchange Commission on April 3, 2012.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HANSEN MEDICAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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14-1850535
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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800 East Middlefield Road
Mountain View, CA 94043
(650) 404-5800
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Bruce J Barclay
President and Chief Executive Officer
800 East Middlefield Road
Mountain View, CA 94043
(650) 404-5800
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
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David T. Young
Ivan A. Gaviria
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
1200 Seaport Boulevard
Redwood City, CA 94063
(650) 321-2400
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John D. Wilson
Shearman & Sterling LLP
4 Embarcadero Center
San Francisco, CA 94111
(415) 616-1100
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Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes
effective.
If the only securities being registered on this form are to be offered pursuant to dividend or interest
reinvestment plans, please check the following box:
¨
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box:
x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering:
¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering:
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box:
¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box:
¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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x
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities To Be Registered
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Proposed Maximum
Aggregate Offering Price(1)
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Amount of
Registration Fee
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Debt Securities (2)
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Common Stock, $0.0001 par value per share (2)
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Warrants
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Total
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$75,000,000
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$8,595.00(3)
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(1)
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Such indeterminate amount or number of debt securities, shares of common stock, and warrants to purchase any combination of the foregoing securities, as may from time
to time be issued at indeterminate prices, with an aggregate initial offering price not to exceed $75,000,000. Securities registered hereunder may be sold separately, together or as units with other securities registered hereunder.
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(2)
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Subject to footnote (1), there are also being registered hereunder an indeterminate amount or number of debt securities and shares of common stock that may be issued
upon exercise of the warrants registered hereunder or upon conversion of, or in exchange for, debt securities registered hereunder, as the case may be.
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(3)
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Calculated in accordance with Rule 457(o).
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The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell the
securities pursuant to this prospectus until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion)
Dated April 3, 2012
$75,000,000
Debt Securities
Common Stock
Warrants
We may, from time to time, offer and sell debt securities, shares of common stock and warrants, either separately or in units, in one or
more offerings. The debt securities and warrants may be convertible into or exercisable or exchangeable for common stock or debt securities. We will specify in an accompanying prospectus supplement or term sheet more specific information about any
such offering. Our common stock is listed on the Nasdaq Global Market under the symbol HNSN. The last reported sale price of our common stock on April 2, 2012 was $3.03 per share. The aggregate public offering price of all securities
under this prospectus will not exceed $75,000,000.
You should read this prospectus, any prospectus supplement and the
documents incorporated by reference in this prospectus and any prospectus supplement carefully before you invest.
Investing in
our securities involves risks. See the section entitled
Risk Factors
on page 2 of this prospectus as well as any prospectus supplement.
This prospectus may not be used to offer or sell any of our securities unless accompanied by a prospectus supplement.
The securities offered by this prospectus may be sold directly by us to investors, through agents designated from time to time or to or
through underwriters or dealers. We will set forth the names of any underwriters or agents in an accompanying prospectus supplement. For additional information on the methods of sale, you should refer to the section entitled Plan of
Distribution. The net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
, 2012
TABLE OF CONTENTS
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HANSEN MEDICAL, INC.
We develop, manufacture and sell a new generation of medical robotics designed for accurate positioning, manipulation and stable control
of catheters and catheter-based technologies. While earlier generations of medical robotics were designed primarily for manipulating rigid surgical instruments, our technology is designed to enable and improve medical procedures that are reliant
upon flexible tools like guide wires, catheters, sheaths, balloons and stents.
Our Sensei
®
Robotic Catheter System, or Sensei system, is designed to allow physicians to instinctively navigate flexible
catheters with greater stability and control in interventional procedures within the atrial heart chambers. Instinctive navigation refers to the ability of our Sensei system to enable physicians to direct the movements of a robotic catheter like our
currently marketed Artisan
tm
Control Catheter, or
Artisan catheter, and our Lynx
®
Robotic Ablation Catheter, or Lynx catheter, to a desired anatomical
location in a way that is natural and inherently simple. We believe our Sensei system and its corresponding disposable catheters enable physicians to perform procedures that historically have been difficult or time consuming to accomplish routinely
with manually-controlled, hand-held catheters and catheter-based technologies, or that we believe could be accomplished only by the most skilled physicians. We believe that our Sensei system has the potential to benefit patients, physicians,
hospitals and third-party payors by improving clinical outcomes and permitting more complex procedures to be performed interventionally.
Our
Magellan
TM
Robotic System, which was cleared for sale
in Europe in the third quarter of 2011, is a proprietary peripheral vascular interventional platform that, used in combination with the NorthStar Robotic Catheter, has the potential to provide endovascular specialists with vessel navigation
with less trauma than manual approaches, fast procedures, catheter stability during the manual delivery and placement of therapeutic devices, reduce procedural radiation exposure and fatigue, and precise robotic control of distal catheter tips. The
Magellan Robotic System cannulates peripheral vessels with a proprietary technology that delivers simultaneous and independent distal tip control of a catheter and a sheath as well as robotic manipulation of standard guide wires, from a centralized,
remote workstation. This technology has the potential to reduce vessel trauma during navigation compared with manual techniques and is also designed to provide a robotically stabilized conduit for the manual placement and delivery of therapeutic
devices. Additionally, the Magellan Robotic System is designed to allow for sufficient extension inside the body to access hard to reach, distal peripheral anatomy.
We were incorporated in Delaware in September 2002 under the name AutoCath, Inc. and changed our name to Hansen Medical, Inc. in March 2003. The address of our principal executive office is 800 East
Middlefield Road, Mountain View, California 94043, and our telephone number is (650) 404-5800. Our website address is www.hansenmedical.com. We do not incorporate the information on our website into this prospectus, and you should not consider
it part of this prospectus. As used in this prospectus, references to we, our, us and Hansen refer to Hansen Medical, Inc. unless the context requires otherwise.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission using a shelf
registration process. Under this shelf registration process, we may sell any combination of debt securities, shares of common stock and warrants, either separately or in units in one or more offerings up to a total dollar amount of $75,000,000. This
prospectus provides you with a general description of the securities we may offer. Each time we offer securities, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the offered securities.
The prospectus supplement may also add, update or change information contained in this prospectus. This prospectus, together with applicable prospectus supplements and the documents incorporated by reference in this prospectus and any prospectus
supplement, includes all material information relating to this offering. Please read carefully both this prospectus and any prospectus supplement together with additional information described below under the sections entitled Where You Can
Find Additional Information and Incorporation of Certain Information by Reference.
You should rely only on
the information contained or incorporated by reference in this prospectus, any accompanying prospectus supplement or any free writing prospectus filed by us with the Securities and Exchange Commission. We have not authorized any other person to
provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, any accompanying prospectus supplement or any free writing prospectus, as well as information we have previously filed
with the Securities and Exchange Commission and incorporated by reference, is accurate as of the date on the front of those documents only. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus may not be used to consummate a sale of our securities unless it is accompanied by a prospectus supplement
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RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks described under Risk
Factors in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, and all of the other information contained in this prospectus and incorporated by reference into this prospectus, including our financial statements and
related notes, before investing in our securities. If any of the possible events described in those sections actually occur, our business, business prospects, cash flow, results of operations or financial condition could be harmed. In this case, the
trading price of our common stock or the value of our securities could, and you might lose all or part of your investment in our securities. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also
impair our operations and results.
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FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in these documents contain forward-looking statements. In some cases, you can
identify forward-looking statements by the following words: may, will, could, would, should, expect, intend, plan, anticipate,
believe, estimate, predict, project, potential, target, continue, ongoing or the negative of these terms or other comparable terminology, although not
all forward-looking statements contain these words. These statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from
the information expressed or implied by these forward-looking statements. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus, we caution you that these statements are based on a
combination of facts and factors currently known by us and our projections of the future, about which we cannot be certain. Many important factors affect our ability to achieve our objectives, including:
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our plans to grow and expand our sales and marketing capabilities;
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our ability to manage our manufacturing processes, including third party manufacturers;
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our ability to maintain existing regulatory clearances, expand approvals for existing products and obtain approvals of new products;
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our plans to increase market acceptance for our products and our efforts to develop new products and enter new markets;
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our ability to obtain and maintain intellectual property protection for our products;
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our financing needs and the use of the proceeds from this offering;
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the impact of credit, financial and general economic conditions on the purchases of our products;
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our ability to remediate material weaknesses in internal control over financial reporting; and
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our ability to respond to litigation or government enforcement actions related to the restatement of our financial statements.
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In addition, you should refer to the section of this prospectus and any applicable prospectus supplement
entitled Risk Factors as well as the documents we have incorporated by reference for a discussion of other important factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking
statements. As a result of these factors, we cannot assure you that the forward-looking statements in this prospectus will prove to be accurate. Furthermore, if our forward-looking statements prove to be inaccurate, the inaccuracy may be material.
In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time
frame, or at all.
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USE OF PROCEEDS
Unless otherwise indicated in any accompanying prospectus supplement, we expect to use the net proceeds from the sale of the offered
securities to support sales, marketing and general administrative activities, for research and product development activities, for capital equipment, for repayment of debt, and to fund working capital and other general corporate purposes. We may
also use a portion of the net proceeds to acquire other businesses, products or technologies. However, we do not have agreements or commitments for any specific acquisitions at this time.
The amount and timing of our use of proceeds will depend on several factors, including the progress of our research and development
efforts, the extent and timing of cash collections of revenue and the amount of net cash used by our operations. Pending their uses, we plan to invest the net proceeds of this offering in short- and intermediate-term, interest-bearing obligations,
investment-grade instruments, certificates of deposit or direct or guaranteed obligations of the U.S. government.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges on a
historical basis for the periods indicated. The ratios are calculated by dividing earnings by the fixed charges.
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Year Ended December 31,
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2007
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2008
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2009
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2010
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2011
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(in thousands)
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Ratio of earnings to fixed charges (1)
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(1)
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For the purposes of computing ratio of earnings to fixed charges, earnings consist of loss before income taxes plus fixed charges. Fixed charges consist of interest
charges. Earnings for 2007, 2008, 2009, 2010 and 2011 were insufficient to cover fixed charges by $50.9 million, $57.9 million, $52.4 million, $37.9 million and $16.7 million, respectively.
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DESCRIPTION OF DEBT SECURITIES
The following is a summary of the general terms of the debt securities. We will file a prospectus supplement or term sheet that will
contain additional terms when we issue debt securities. The terms presented here, together with the terms in a related prospectus supplement or term sheet, will be a description of the material terms of the debt securities. You should also
read the indenture under which the debt securities are to be issued and the form of debt securities. Such indenture may be supplemented from time to time. We have filed a form of indenture governing different types of debt securities with the
Securities and Exchange Commission as an exhibit to the registration statement of which this prospectus is a part. All capitalized terms have the meanings specified in the indenture.
We may issue, from time to time, debt securities, in one or more series. The debt securities we offer will be issued under an
indenture between us and the trustee named in the indenture. These debt securities that we may issue include senior debt securities, senior subordinated debt securities, subordinated debt securities, convertible debt securities and exchangeable
debt securities. The following is a summary of certain provisions of the form of the indenture filed as an exhibit to the registration statement of which this prospectus is a part. For each series of debt securities, the applicable
prospectus supplement or term sheet for the series may change and supplement the summary below.
General Terms of the Indenture
The indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt
securities up to the principal amount that we may authorize. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any
covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us. For each series of debt securities, any restrictive covenants for
those debt securities will be described in the applicable prospectus supplement or term sheet for those debt securities.
We
may issue the debt securities issued under the indenture as discount securities, which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not
issued at a discount, may, for United States federal income tax purposes, be treated as if they were issued with original issue discount, or OID, because of interest payment and other characteristics. Special United States federal
income tax considerations applicable to debt securities issued with original issue discount will be described in more detail in any applicable prospectus supplement or term sheet.
You should refer to the prospectus supplement or term sheet relating to a particular series of debt securities for a description of the
following terms of the debt securities offered by that prospectus supplement or term sheet and by this prospectus:
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the title and authorized denominations of those debt securities;
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the aggregate principal amount of the debt securities and any limit on the aggregate principal amount of that series of debt securities;
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the date or dates on which principal and premium, if any, of the debt securities of that series is payable;
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the interest rate or rates, and the dates from which interest, if any, on the debt securities of that series will accrue, and the dates when interest
is payable or the method by which such dates are to be determined;
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the right, if any, to extend the interest payment periods and the duration of the extensions;
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if the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin or currency other than
that in which the debt securities are stated to be payable, the manner in which these amounts are determined and the calculation agent, if any, with respect thereto;
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the place or places where and the manner in which principal of, premium, if any, and interest, if any, on the debt securities of that series will be
payable and the place or places where those debt securities may be presented for transfer and, if applicable, conversion or exchange;
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the period or periods within which, the price or prices at which, the currency or currencies in which, and other terms and conditions upon which those
debt securities may be redeemed, in whole or in part, at our option or the option of a holder of those securities, if we or a holder is to have that option;
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our obligation or right, if any, to redeem, repay or purchase those debt securities pursuant to any sinking fund or analogous provision or at the
option of a holder of those securities, and the terms and conditions upon which the debt securities will be redeemed, repaid or purchased, in whole or in part, pursuant to that obligation;
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the terms, if any, on which the debt securities of that series will be subordinate in right and priority of payment to our other debt;
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if other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon acceleration of maturity
as a result of a default on our obligations or how this portion will be determined;
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whether those debt securities will be issued in fully registered form without coupons or in a form registered as to principal only with coupons or in
bearer form with coupons;
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whether any securities of that series are to be issued in whole or in part in the form of one or more global securities and the depositary for those
global securities;
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if other than United States dollars, the currency or currencies in which payment of principal of or any premium or interest on those debt securities
will be payable;
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if the principal of or any premium or interest on the debt securities of that series is to be payable, or is to be payable at our election or the
election of a holder of those securities, in securities or other property, the type and amount of those securities or other property, or the manner of determining that amount, and the period or periods within which, and the terms and conditions upon
which, any such election may be made;
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any provisions granting special rights to the holders of debt securities upon the occurrence of specified events;
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the events of default and covenants relating to the debt securities that are in addition to, modify or delete those described in this prospectus;
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conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto;
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whether and upon what terms the debt securities may be defeased, if different from the provisions set forth in the indenture;
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the nature and terms of any security for any secured debt securities;
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the terms applicable to any debt securities issued at a discount from their stated principal amount; and
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any other specific terms of any debt securities.
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The applicable prospectus supplement or term sheet will present any material United States federal income tax considerations for holders of any debt securities and the securities exchange or quotation
system on which any debt securities are to be listed or quoted.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for shares of our equity securities or other securities. The terms and
conditions of conversion or exchange will be stated in the applicable prospectus supplement or term sheet. The terms will include, among others, the following:
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the conversion or exchange ratio (or the calculation method);
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the conversion or exchange period (or how the period will be determined);
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provisions regarding our ability or the ability of any holder to convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange ratio; and
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provisions affecting conversion or exchange in the event of our redemption of the debt securities.
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These terms may also include provisions under which the number or amount of other securities to be received by the holders of the debt
securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time stated in the prospectus supplement or term sheet.
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Reopening of Issue
We may, from time to time, reopen an issue of debt securities and issue additional debt securities with the same terms (including maturity date and interest rate) as debt securities issued on an earlier
date. After such additional debt securities are issued, they will be fungible with the debt securities issued on the earlier date to the extent specified in the applicable prospectus supplement.
Consolidation, Merger or Sale
We cannot consolidate with or merge with or into, convey, transfer or lease all or substantially all of our properties and assets to, any person, unless we are the continuing or successor company or
unless the successor entity or person to which our properties and assets are transferred or leased is organized under the laws of the United States, any state of the United States or the District of Columbia and expressly assumes by a supplemental
indenture the due and punctual payment of the principal of, any premium on and any interest on, all the outstanding debt securities and the performance of every covenant and obligation in the indenture to be performed by us. In addition, we
cannot complete such a transaction unless immediately after giving effect to the transaction, no event of default under the indenture, and no event that, after notice or lapse of time or both, would become an event of default under the indenture,
has occurred and is continuing. When the successor entity or person to whom our assets are transferred or leased has assumed our obligations under the debt securities and the indenture, we will be discharged from all our obligations under the
debt securities and the indenture except in limited circumstances.
This covenant would not apply to any recapitalization
transaction, a change of control affecting us or a highly leveraged transaction, unless the transaction or change of control were structured to include a merger or consolidation or transfer or lease of all or substantially all of our properties and
assets.
Events of Default
The indenture provides that the following will be events of default with respect to any series of debt securities:
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failure to pay interest for 30 days after the date payment is due and payable; provided, however, that a valid extension of the interest payment period
in accordance with the indenture will not constitute a failure to pay interest;
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failure to pay principal or premium, if any, on any debt security when due, either at maturity, upon any redemption, by declaration or otherwise and,
in the case of technical or administrative difficulties, only if such default persists for a period of more than three business days;
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failure to perform other covenants contained in the indenture for the benefit of the debt securities for 75 days after notice is given by the holders
of at least 25% in principal amount of the outstanding debt securities of that series or by the trustee as specified in the indenture;
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certain events in bankruptcy, insolvency or reorganization relating to us; or
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any other event of default provided in the applicable officers certificate, resolution of our board of directors or the supplemental indenture
under which we issue a series of debt securities.
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An event of default for a particular series of debt
securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture. For each series of debt securities, any modifications to the above events of default will be described in the
applicable prospectus supplement or term sheet for those debt securities.
The indenture provides that if an event of default
occurs and is continuing with respect to any series of debt securities, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare the principal amount of
all those debt securities (or, in the case of discount securities or indexed securities, that portion of the principal amount as may be specified in the terms of that series) to be due and payable immediately. If an event of default
specified in the fourth bullet above occurs and is continuing, then the principal amount of all those debt securities (or, in the case of discount securities or indexed securities, that portion of the principal amount as may be specified in the
terms of that series) will be due and payable immediately, without any declaration or other act on the part of the trustee or any holder. In certain cases, holders of a majority in principal amount of the outstanding debt securities of any
series may, on behalf of holders of all those debt securities, rescind and annul a declaration of acceleration.
The
indenture imposes limitations on suits brought by holders of debt securities against us. Except for actions to receive payment of principal, premium, if any, or interest, no holder of debt securities of any series may institute any action
against us under the indenture unless:
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the holder has previously given to the trustee written notice of a default and continuance of such default;
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the holders of at least 25% in principal amount of the outstanding debt securities of the affected series have requested that the trustee institute the
action;
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the requesting holders have offered the trustee indemnity for the reasonable costs, expenses and liabilities that may be incurred by bringing the
action;
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the trustee has not instituted the action within 60 days of the request and offer of indemnity; and
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the trustee has not received inconsistent direction during such 60-day period by the holders of a majority in principal amount of the outstanding debt
securities of the affected series.
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We will be required to file annually with the trustee a certificate,
signed by one of our officers, stating whether or not the officer knows of any default by us in the performance, observance or fulfillment of any condition or covenant of the indenture.
Discharge, Defeasance and Covenant Defeasance
We may discharge or decrease
our obligations under the indenture as stated below.
We may discharge obligations to holders of any series of debt securities
that have not already been delivered to the trustee for cancellation and that have either become due and payable or are by their terms to become due and payable, or are scheduled for redemption, within one year. We may effect a discharge by
irrevocably depositing with the trustee cash or government obligations denominated in the currency of the debt securities, as trust funds, in an amount certified to be enough to pay when due, whether at maturity, upon redemption or otherwise, the
principal of, and any premium and interest on, the debt securities and any mandatory sinking fund payments.
Unless otherwise
provided in the applicable prospectus supplement or term sheet, we may also discharge any and all of our obligations to holders of any series of debt securities at any time, which we refer to as defeasance. We may also be released from the
obligations imposed by certain covenants of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without creating an event of default under the trust declaration, which we refer to
as covenant defeasance. We may effect defeasance and covenant defeasance on the 91st day after the date of the deposit with the trustee described below only if, among other things:
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we irrevocably deposit with the trustee cash or government obligations denominated in the currency of the debt securities, as trust funds, in an amount
certified to be enough to pay at maturity, or upon redemption, the principal (including any mandatory sinking fund payments) of, and any premium and interest on, all outstanding debt securities of the series;
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no default under the indenture with respect to that series shall have occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after the date of deposit; and
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we deliver to the trustee an opinion of counsel to the effect that the holders of the series of debt securities will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of the defeasance or covenant defeasance and that defeasance or covenant defeasance will not otherwise alter the holders U.S. federal income tax treatment of principal, and any premium and
interest payments on, the series of debt securities.
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In the case of a defeasance by us, the opinion we
deliver must be based on a ruling of the Internal Revenue Service issued, or a change in U.S. federal income tax law occurring, after the date of the indenture, since such a result would not occur under the U.S. federal income tax laws in effect on
that date.
Although we may discharge or decrease our obligations under the indenture as described in the three preceding
paragraphs, we may not avoid, among other things, our duty to register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen series of debt securities or to maintain an office or
agency in respect of any series of debt securities.
Modification of the Indenture
The indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt
securities to, among other things:
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evidence the assumption by a successor entity of our obligations;
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add to our covenants for the benefit of the holders of debt securities, or to surrender any rights or power conferred upon us;
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add any additional events of default;
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cure any ambiguity or omission or correct any inconsistency or defect in the indenture;
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add to, change or eliminate any of the provisions of the indenture in a manner that will become effective only when there is no outstanding debt
security which is entitled to the benefit of the provision as to which the modification would apply;
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add guarantees of or secure any debt securities;
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establish the forms or terms of debt securities of any series;
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evidence and provide for the acceptance of appointment by a successor trustee and add to or change any of the provisions of the indenture as is
necessary for the administration of the trusts by more than one trustee;
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add to or change any of the provisions of the indenture to the extent necessary to permit or facilitate the issuance of debt securities in bearer form,
registrable or not registrable as to principal, and with or without interest coupons;
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provide for uncertificated debt securities in addition to or in place of all, or any series of, certificated debt securities;
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change any place or places where (a) the principal of or premium, if any, or interest, if any, on all or any series of debt securities shall be
payable, (b) all or any series of debt securities may be surrendered for registration or transfer, (c) all or any series of debt securities may be surrendered for exchange or conversion, and (d) notices and demands to or upon us in
respect of all or any series of debt securities and the indenture may be served;
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supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any
series of debt securities,
provided
that any such action shall not adversely affect the interests of the holders of debt securities of such series or any other series in any material respect;
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conform the terms of any series of debt securities to the description thereof in the prospectus and prospectus supplement (or similar offering
document) offering such series of debt securities;
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modify, eliminate or add to the provisions of the indenture as shall be necessary to effect the qualification of the indenture under the Trust
Indenture Act of 1939 or under any similar federal statute later enacted, and to add to the indenture such other provisions as may be expressly required by the Trust Indenture Act of 1939; or
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make any other provisions with respect to matters or questions arising under the indenture as long as the new provisions do not adversely affect the
interests of the holders of any outstanding debt securities of any series created prior to the modification in any material respect.
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The indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of debt securities of each series of debt securities
affected by such supplemental indenture then outstanding, add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture or any supplemental indenture or modify in any manner the rights of the holders
of the debt securities. We and the trustee may not, however, without the consent of the holder of each outstanding debt security affected thereby:
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change the final maturity of any debt security;
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change or reduce the principal amount or premium, if any;
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change or reduce the interest rate;
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change the method of calculating the interest rate;
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reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration;
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change the currency in which the principal, and any premium or interest, is payable;
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impair the right to institute suit for the enforcement of any payment on any debt security when due;
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if applicable, adversely affect the right of a holder to convert or exchange a debt security; or
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reduce the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture or for waivers of
compliance with or defaults under the indenture with respect to debt securities of that series.
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The
indenture provides that the holders of not less than a majority in aggregate principal amount of the then outstanding debt securities of any series, by notice to the relevant trustee, may on behalf of the holders of the debt securities of that
series waive any default and its consequences under the indenture except:
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a default in the payment of, any premium and any interest on, or principal of, any such debt security held by a nonconsenting holder; or
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a default in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each
outstanding debt security of each series affected.
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Registered Global Securities and Book Entry System
The debt securities of a series may be issued in whole or in part in book-entry form and will be represented by one or more fully
registered global securities. We will deposit any registered global securities with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement or term sheet and registered in the name of such depositary
or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global
security or securities. This means that we will not issue certificates to each holder, except in the limited circumstances described below.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
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by the depositary for the registered global security to its nominee;
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by a nominee of the depositary to the depositary or another nominee of the depositary; or
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
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The prospectus supplement or term sheet relating to a series of debt securities will describe the specific terms of the depositary
arrangement involving any portion of the series represented by a registered global security. We anticipate that the following provisions will apply to all depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for such registered
global security, these persons being referred to as participants, or persons that may hold interests through participants;
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and
transfer system, the participants accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants;
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any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to be credited; and
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ownership of beneficial interest in the registered global security will be shown on, and the transfer of the ownership interest will be effected only
through, records maintained by the depositary for the registered global security for interests of participants, and on the records of participants for interests of persons holding through participants.
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The laws of some states may require that specified purchasers of securities take physical delivery of the securities in definitive
form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of the registered global security, the depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the indenture. Except as stated below, owners of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt securities under the relevant indenture.
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Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for
the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a
registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests
to give or take the action, and the participants would authorize beneficial owners owning through the participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global
security registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. Neither we nor the trustee, or any other agent of ours or the
trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global
security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will promptly credit participants accounts with payments in amounts proportionate to their respective
beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests
in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in street name. We also expect that any of these payments will
be the responsibility of the participants.
If the depositary for any debt securities represented by a registered global
security is at any time unwilling or unable to continue as depositary or stops being a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary
within 90 days, we will issue the debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series
represented by one or more registered global securities. In that event, we will issue debt securities of the series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee
will register any debt securities issued in definitive form in exchange for a registered global security in the name or names as the depositary, based upon instructions from its participants, shall instruct the trustee.
We may also issue bearer debt securities of a series in the form of one or more global securities, referred to as bearer global
securities. We will deposit these securities with a depositary identified in the prospectus supplement or term sheet relating to the series. The prospectus supplement or term sheet relating to a series of debt securities represented
by a bearer global security will describe the applicable terms and procedures. These will include the specific terms of the depositary arrangement and any specific procedures for the issuance of debt securities in definitive form in exchange
for a bearer global security, in proportion to the series represented by a bearer global security.
Concerning the Trustee
The indenture provides that there may be more than one trustee under the indenture, each for one or more series of debt
securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust under the indenture separate and apart from the trust administered by any other trustee under that
indenture. Except as otherwise indicated in this prospectus or any prospectus supplement or term sheet, any action permitted to be taken by a trustee may be taken by such trustee only on the one or more series of debt securities for which it is
the trustee under the indenture. Any trustee under the indenture may resign or be removed from one or more series of debt securities. All payments of principal of, and any premium and interest on, and all registration, transfer, exchange,
authentication and delivery of, the debt securities of a series will be effected by the trustee for that series at an office designated by the trustee in New York, New York.
The indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an
event of default, the trustee will exercise those rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such
persons own affairs.
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If the trustee becomes a creditor of ours, the indenture places limitations on the right of
the trustee to obtain payment of claims or to realize on property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If it acquires any conflicting interest relating to any duties
concerning the debt securities, however, it must eliminate the conflict or resign as trustee.
No Individual Liability of Incorporators,
Stockholders, Officers or Directors
The indenture provides that no past, present or future incorporator, director,
officer, stockholder or employee of ours, any of our affiliates, or any successor corporation, in their capacity as such, shall have any individual liability for any of our obligations, covenants or agreements under the debt securities or the
indenture.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
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DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 100,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 shares of
preferred stock, par value $0.0001 per share.
The following is a summary of the rights of our common stock and preferred
stock. This summary is not complete. For more detailed information, please see our amended and restated certificate of incorporation and amended and restated bylaws, which have been previously filed with the Securities and Exchange Commission.
Common Stock
Outstanding Shares
. As of March 28, 2012, there were 60,993,560 shares of common stock outstanding held of record by
approximately 229 stockholders.
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 amended and restated certificate of incorporation and 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, and the shares of common stock to be issued in this offering will be, fully paid and nonassessable.
Preferred
Stock
As of March 30, 2012, there were no shares of preferred stock outstanding. Under our amended and restated
certificate of incorporation, our board of directors is authorized, without further action by the stockholders, to issue up to 10,000,000 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.
Registration Rights
Under the Stock Purchase Agreements we entered into with Oracle Partners, LP, Oracle Institutional Partners, LP and Oracle Ten Fund
Master, LP, or Oracle, and Jack W. Schuler, or Mr. Schuler, dated as of November 7, 2011, or the Stock Purchase Agreements, Oracle and Mr. Schuler purchased an aggregate of 4,784,690 shares of common stock in a private placement.
Pursuant to registration rights granted in the Stock Purchase Agreements, on January 6, 2012 we filed a registration statement covering the resale of the shares sold to Oracle and Mr. Schuler in the private placement. These
registration rights are subject to specified conditions and limitations, as set forth in the Stock Purchase Agreements. We paid and will continue to pay all expenses related to such registration rights, including, without limitation, registration,
qualification and filing fees, and printing expenses.
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Delaware Anti-Takeover Law and Provisions of our Amended and Restated Certificate of Incorporation and
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 of directors of the corporation and authorized at an
annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66
2
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3
% of the outstanding voting stock which is not owned by the
interested stockholder.
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Section 203 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 the assets 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; and
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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.
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
. Provisions of our amended and restated
certificate of incorporation and 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 amended and
restated certificate of incorporation and amended and restated bylaws:
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permit our board of directors to issue up to 10,000,000 shares of preferred stock, with any rights, preferences and privileges as they may designate,
including the right to approve an acquisition or other change in our control;
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provide that the authorized number of directors may be changed only by resolution of the board of directors;
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provide that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a
majority of directors then in office, even if less than a quorum;
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divide our board of directors into three classes;
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require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by
written consent;
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provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a
meeting of stockholders must provide notice in writing in a timely manner, and also specify requirements as to the form and content of a stockholders notice;
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do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any
election of directors to elect all of the directors standing for election, if they should so choose);
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provide that special meetings of our stockholders may be called only by the chairman of the board, our chief executive officer or by the board of
directors pursuant to a resolution adopted by a majority of the total number of authorized 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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The amendment of any of these provisions would require approval by the holders of at least 66
2
/
3
% 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 HNSN.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare, 330 N. Brand Blvd., Suite 701, Glendale, CA 91203-2389.
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, common stock, or any combination thereof. We may issue warrants independently
or together with any other securities offered by any prospectus supplement and may be attached to or separate from the other offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into by us with
a warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. Further terms of the
warrants and the applicable warrant agreements will be set forth in the applicable prospectus supplement.
The applicable
prospectus supplement or term sheet relating to any particular issue of warrants will describe the terms of the warrants, including, as applicable, the following:
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the title of the warrants;
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the aggregate number of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, terms and number of shares of common stock or principal amount of debt securities purchasable upon exercise of the warrants;
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the designation and terms of the offered securities, if any, with which the warrants are issued and the number of the warrants issued with each offered
security;
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the date, if any, on and after which the warrants and the related debt securities or common stock will be separately transferable;
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the price at which each share of common stock or underlying debt securities purchasable upon exercise of the warrants may be purchased or the manner of
determining such price;
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the date on which the right to exercise the warrants shall commence and the date on which that right shall expire;
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the minimum or maximum amount of the warrants which may be exercised at any one time;
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information with respect to book- entry procedures, if any;
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a discussion of certain federal income tax considerations; and
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any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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We and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the
consent of the holders of the warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially and adversely affect the interests of the holders of the warrants.
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PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus to one or more underwriters or dealers for public offering and sale by them or to
investors directly or through agents. The prospectus supplement or term sheet will set forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, dealers or agents in connection with the
offering, including:
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the name or names of any underwriters, dealers or agents;
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the purchase price of our securities and the proceeds we will receive from the sale;
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any options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting compensation to underwriters, dealers or agents;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which our securities offered in the prospectus supplement may be listed or quoted.
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Only underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices, or at prices determined as the applicable prospectus supplement specifies. The securities may be sold through a
rights offering, forward contracts or similar arrangements. If underwriters are used in the sale, they will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at a fixed public
offering price or at varying prices determined at the time of sale. The obligations of any underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities to
the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all the securities offered by the prospectus
supplement if they purchase any of the securities of that series. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material
relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship. We may sell securities directly or through agents we designate from time to time. We will name any agent involved in the
offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement.
We
may authorize underwriters, dealers or agents to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
Underwriters, dealers and agents participating in the distribution may be deemed to be underwriters, and any discounts or commissions
they receive and any profit they realize on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. We may provide underwriters, dealers or agents with indemnification against civil
liabilities related to this offering, including liabilities under the Securities Act, or contribution with respect to payments that the underwriters, dealers or agents may make with respect to such liabilities. Underwriters, dealers or agents may
engage in transactions with, or perform services for, us in the ordinary course of business.
These securities may or may not
be listed on a national securities exchange. Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Securities Exchange Act of 1934, as amended.
Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying securities so long as the stabilizing bids do
17
not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids
permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer is purchased in a covering transaction to cover short positions. Those activities may stabilize, maintain or otherwise affect the
market price of the securities. As a result, the price of the securities may be higher than the price that otherwise might exist in the open market. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters who are qualified market makers on the Nasdaq Global Market may engage in passive market making transactions in the
common stock on the Nasdaq Global Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of common stock. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are
lowered below the passive market makers bid, however, the passive market makers bid must then be lowered when certain purchase limits are exceeded.
In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable
prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use
securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or
pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic
short position to investors in our securities or in connection with a concurrent offering of other securities.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
18
LEGAL MATTERS
Certain legal matters relating to the issuance of the securities offered by this prospectus will be passed upon for us by Gunderson
Dettmer Stough Villeneuve Franklin & Hachigian, LLP, Redwood City, California and Shearman & Sterling LLP, San Francisco, California.
EXPERTS
The financial statements as of and for
each of the two years in the period ended December 31, 2011 incorporated in this prospectus by reference from the Companys Annual Report on Form 10-K for the year ended December 31, 2011 and the effectiveness of the Companys
internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference (which report expresses an
unqualified opinion and includes an explanatory paragraph regarding the Companys change in revenue recognition). Such financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts
in auditing and accounting.
The financial statements for the year ended December 31, 2009 incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2011 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We file annual, quarterly and other periodic reports, proxy statements and other information with the
Securities and Exchange Commission. You can read our Securities and Exchange Commission filings, including this registration statement, over the Internet at the Securities and Exchange Commissions website at www.sec.gov. You may also read and
copy any document we file with the Securities and Exchange Commission at its public reference facilities at 100 F Street NE, Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates by writing to the Public Reference
Section of the Securities and Exchange Commission at 100 F Street NE, Washington, D.C. 20549. Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further information on the operation of the public reference facilities.
Our website address is www.hansenmedical.com. There we make available free of charge, on or through the investor relations
section of our website, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current reports on Form 8-K and amendments to those reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably
practicable after we electronically file such material with the Securities and Exchange Commission. The information found on our website is not part of this or any other report we file with the Securities and Exchange Commission.
19
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act.
This prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional information and exhibits. The Securities and Exchange Commission permits us to incorporate by
reference the information contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important information to you by referring you to those documents rather than by including them in this
prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Information that we file later with the Securities and Exchange Commission
will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents are filed. We have filed with
the Securities and Exchange Commission, and incorporate by reference in this prospectus:
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Annual Report on Form 10-K for the year ended December 31, 2011 filed on March 15, 2012.
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All information in our proxy statement filed with the Securities and Exchange Commission on March 30, 2012 to the extent incorporated by reference
in our Annual Report on Form 10-K for the year ended December 31, 2011.
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Current Reports on Form 8-K (excluding any reports or portions thereof that are deemed to be furnished and not filed) filed on January 6,
2012, February 3, 2012, February 28, 2012 and March 28, 2012.
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The description of our common stock contained in our Form 8-A filed on November 14, 2006.
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We also incorporate by reference all additional documents that we file with the Securities and Exchange Commission under the terms of
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are made after the initial filing date of the registration statement of which this prospectus is a part until the offering of the particular securities covered by a prospectus supplement or
term sheet has been completed. We are not, however, incorporating, in each case, any documents or information that we are deemed to furnish and not file in accordance with Securities and Exchange Commission rules.
You may request, and we will provide you with, a copy of these filings, at no cost, by calling us at (650) 404-5800 or by writing to
us at the following address:
Hansen Medical, Inc.
800 East Middlefield Road
Mountain View, CA 94043
Attn: Investor Relations
20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth all costs and expenses payable by us in connection with the sale of the securities being registered. All amounts shown are estimates except for the Securities and Exchange
Commission registration fee.
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SEC registration fee
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$
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8,595.00
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Transfer Agent and Registrar fees and expenses
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$
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*
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Trustee fees and expenses
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$
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*
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Printing expenses
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$
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*
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Legal fees and expenses
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$
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*
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Accounting fees and expenses
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$
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*
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Miscellaneous fees and expenses
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$
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*
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Total
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$
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*
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*
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These fees and expenses are based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
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ITEM 15.
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Indemnification of Directors and Officers.
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We are 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. 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. Our amended and restated certificate of incorporation and 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:
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transaction from which the director derives an improper personal benefit;
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payment of dividends or redemption of shares; or
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breach of a directors duty of loyalty to the corporation or its stockholders.
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Our amended and restated certificate of incorporation and amended and restated bylaws include such a provision. 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.
II-1
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, we have entered into
indemnity agreements with each of our directors and certain of our executive officers, the forms of which have been filed as exhibits to filings made with the Securities and Exchange Commission. The indemnification agreements provide that we will
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 Hansen Medical 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 our 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.
We have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act of 1933, as amended, or otherwise.
Section 1.9 of our amended and restated investors rights agreement provides for indemnification of certain of our stockholders
against liabilities described in our amended and restated investors rights agreement, the form of which has been previously filed with the Securities and Exchange Commission.
Exhibits.
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Exhibit
Number
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Description of Document
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1.1
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*
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Form of Underwriting Agreement.
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4.1
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Form of Indenture related to debt securities.
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4.2
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Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.2 of Registrants Form S-1 Registration Statement No. 333-136685).
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4.3
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Stock Purchase Agreement dated November 7, 2011 entered into by and among the Registrant, Oracle Partners, LP, Oracle Institutional Partners, LP and Oracle Ten Fund Master, LP,
filed as an exhibit to Registrants Current Report on Form 8-K, filed on November 7, 2011 and incorporated herein by reference.
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4.4
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Stock Purchase Agreement dated November 7, 2011 entered into by and between the Registrant and Jack W. Schuler, filed as an exhibit to Registrants Current Report on Form
8-K, filed on November 7, 2011 and incorporated herein by reference.
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5.1
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Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
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5.2
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Opinion of Shearman & Sterling LLP.
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12.1
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Computation of Ratio of Earnings to Fixed Charges.
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23.1
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Consent of Deloitte & Touche LLP, independent public registered accounting firm.
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23.2
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Consent of PricewaterhouseCoopers LLP, independent public registered accounting firm.
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23.3
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Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. Reference is made to Exhibit 5.1.
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23.4
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Consent of Shearman & Sterling LLP. Reference is made to Exhibit 5.2.
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24.1
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Power of Attorney. Reference is made to page II-5.
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25.1
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+
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Form T-1 Statement of Eligibility of the trustee for the debt securities.
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II-2
*
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, if applicable, and
incorporated herein by reference.
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+
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To be filed by amendment or pursuant to Trust Indenture Act of 1939 Section 305(b)(2), if applicable.
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(a) 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, as amended;
(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 any 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 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; and
(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;
provided
,
however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(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 Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, 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 a part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, 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.
(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, as amended, to any purchaser:
(i) 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
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933, as amended, 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 that 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-3
(5) That, for the purpose of determining liability of the registrant under
the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any
other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of
1933, as amended, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended), 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.
(c)
The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934, as amended; and, where interim financial information required to be presented by Article 3 of Regulation S-X are
not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim
financial information.
(d) Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended,
may be permitted to directors, officers and controlling persons of the registrant, 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, as amended, 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 matter 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, as amended, and will be
governed by the final adjudication of such issue.
(e) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, as amended, (i) the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed
by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act of 1933, as amended, shall be deemed to be part of this registration statement as of the time it was declared effective, and (ii) each
post-effective amendment that contains a form of prospectus 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.
(f) The undersigned registrant hereby undertakes to file an application for purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 (the TIA) in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the TIA.
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 requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mountain View, State of California, on the
3
rd
day of April, 2012.
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HANSEN MEDICAL, INC.
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By:
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/s/ BRUCE J BARCLAY
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Bruce J Barclay
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Bruce J Barclay and Peter J. Mariani and each of them, his true and lawful attorneys-in-fact
and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to sign any
registration statement for the same offering covered by this registration statement that is to be effective on filing pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto,
and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ BRUCE J BARCLAY
Bruce J Barclay
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Chief Executive Officer and Director
(Principal Executive Officer)
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April 3, 2012
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/s/ PETER J. MARIANI
Peter J. Mariani
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Vice President, Finance and
Administration and Chief Financial Officer
(Principal Financial Officer)
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April 3, 2012
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/s/ MICHAEL L. EAGLE
Michael L. Eagle
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Director
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April 3, 2012
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/s/ RUSSELL C. HIRSCH, M.D.,
Ph.D.
Russell C. Hirsch, M.D., Ph.D.
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Director
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April 3, 2012
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/s/ KEVIN HYKES
Kevin Hykes
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Director
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|
April 3, 2012
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/s/ CHRISTOPHER P. LOWE
Christopher P. Lowe
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Director
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April 3, 2012
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/s/ FREDERICK H. MOLL,
M.D.
Frederick H. Moll, M.D.
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Director
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April 3, 2012
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William R. Rohn
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Director
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/s/ JAMES M. SHAPIRO
James M. Shapiro
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Director
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April 3, 2012
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II-5
EXHIBIT INDEX
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Exhibit
Number
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Description of Document
|
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1.1
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|
*
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Form of Underwriting Agreement.
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4.1
|
|
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Form of Indenture related to debt securities.
|
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4.2
|
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Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.2 of Registrants Form S-1 Registration Statement No. 333-136685).
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4.3
|
|
|
|
Stock Purchase Agreement dated November 7, 2011 entered into by and among the Registrant, Oracle Partners, LP, Oracle Institutional Partners, LP and Oracle Ten Fund Master, LP,
filed as an exhibit to Registrants Current Report on Form 8-K, filed on November 7, 2011 and incorporated herein by reference.
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4.4
|
|
|
|
Stock Purchase Agreement dated November 7, 2011 entered into by and between the Registrant and Jack W. Schuler, filed as an exhibit to Registrants Current Report on Form
8-K, filed on November 7, 2011 and incorporated herein by reference.
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5.1
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Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
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5.2
|
|
|
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Opinion of Shearman & Sterling LLP.
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|
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12.1
|
|
|
|
Computation of Ratio of Earnings to Fixed Charges.
|
|
|
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23.1
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|
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Consent of Deloitte & Touche LLP, independent public registered accounting firm.
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23.2
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|
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Consent of PricewaterhouseCoopers LLP, independent public registered accounting firm.
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23.3
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|
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Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. Reference is made to Exhibit 5.1.
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23.4
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Consent of Shearman & Sterling LLP. Reference is made to Exhibit 5.2.
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24.1
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Power of Attorney. Reference is made to page II-5.
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25.1
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+
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Form T-1 Statement of Eligibility of the trustee for the debt securities.
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*
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To be filed by amendment or pursuant to a report to be filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, if applicable, and
incorporated herein by reference.
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+
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To be filed by amendment or pursuant to Trust Indenture Act of 1939 Section 305(b)(2), if applicable.
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Hansen Medical, Inc. (MM) (NASDAQ:HNSN)
과거 데이터 주식 차트
부터 6월(6) 2024 으로 7월(7) 2024
Hansen Medical, Inc. (MM) (NASDAQ:HNSN)
과거 데이터 주식 차트
부터 7월(7) 2023 으로 7월(7) 2024