Filed Pursuant to Rule 424(b)(5)
Registration No. 333-180547
PROSPECTUS SUPPLEMENT
(To Prospectus dated April 23, 2012)
Up to $25,000,000 of Shares
Common Stock
We have entered into a sales agreement with Cantor Fitzgerald & Co. relating to shares of our common stock offered by this prospectus supplement and the accompanying prospectus. In accordance
with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up to $25,000,000 from time to time through Cantor Fitzgerald & Co., acting as agent.
Our common stock is listed on The NASDAQ Global Market under the symbol “HNSN.” On March 13, 2013, the last reported sale
price of our common stock on The NASDAQ Global Market was $2.12 per share.
Sales of our common stock, if any, under this
prospectus supplement and the accompanying prospectus may be made in sales deemed to be “at-the-market” equity offerings as defined in Rule 415 promulgated under the Securities Act of 1933, as amended, or the Securities Act, including
sales made directly on or through The NASDAQ Global Market, the existing trading market for our common stock, sales made to or through a market maker other than on an exchange or otherwise, in negotiated transactions at market prices prevailing at
the time of sale or at prices related to such prevailing market prices, and/or any other method permitted by law. Cantor Fitzgerald & Co. will act as sales agent on a best effort basis and use commercially reasonable efforts to sell on our
behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between Cantor Fitzgerald & Co. and us. There is no arrangement for funds to be received
in any escrow, trust or similar arrangement.
Cantor Fitzgerald & Co. will be entitled to compensation at a fixed
commission rate of 3.0% of the gross sales price per share sold. In connection with the sale of the common stock on our behalf, Cantor Fitzgerald & Co. will be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation of Cantor Fitzgerald & Co. will be deemed to be underwriting commissions or discounts.
Investing in our securities involves a high degree of risk. Before making an investment decision, please read the information
contained in or incorporated by reference under the heading “
Risk Factors
” beginning on page S-4 of this prospectus supplement, on page 3 of the accompanying prospectus and in the documents
incorporated by reference into this 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 supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus supplement is March 15, 2013.
TABLE OF CONTENTS
S-i
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus relate to the offering of our common stock. Before buying any of the common
stock that we are offering, we urge you to carefully read this prospectus supplement and the accompanying prospectus, together with the information incorporated by reference as described under the headings “Where You Can Find More
Information” and “Incorporation of Certain Information by Reference” in this prospectus supplement. These documents contain important information that you should consider when making your investment decision.
This document is comprised of two parts. The first part is this prospectus supplement, which describes the specific terms of this
offering and also adds to, and updates information contained in, the accompanying prospectus and the documents incorporated by reference into this prospectus supplement and the accompanying prospectus. The second part, the accompanying prospectus,
including the documents incorporated by reference into the accompanying prospectus, provides more general information, some of which may not apply to this offering. Generally, when we refer to this prospectus, we are referring to the combined
document consisting of this prospectus supplement and the accompanying prospectus. To the extent there is a conflict between the information contained in this prospectus supplement, on the one hand, and the information contained in the accompanying
prospectus or in any document incorporated by reference into this prospectus supplement and the accompanying prospectus that was filed with the Securities and Exchange Commission, or the Commission, before the date of this prospectus supplement, on
the other hand, you should rely on the information in this prospectus supplement. If any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by
reference into the accompanying prospectus—the statement in the document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained in, or incorporated by reference into, this prospectus supplement, the accompanying prospectus, and in any free writing prospectus that we have authorized
for use in connection with this offering. We have not authorized any other person to provide you with different information. We are not making an offer to sell or soliciting an offer to buy our securities in any jurisdiction in which an offer or
solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this
prospectus supplement, the accompanying prospectus, the documents incorporated by reference into this prospectus supplement and the accompanying prospectus, and in any free writing prospectus that we have authorized for use in connection with this
offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations, and prospects may have changed since those dates. You should read this prospectus supplement, the accompanying
prospectus, the documents incorporated by reference into this prospectus supplement and the accompanying prospectus, and any free writing prospectus that we have authorized for use in connection with this offering, in their entirety before making an
investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus supplement entitled “Where You Can Find More Information” and “Incorporation of
Certain Information by Reference.” The information incorporated by reference is considered part of this prospectus supplement, and information we file later with the Commission may automatically update and supersede this information.
All references in this prospectus supplement and the accompanying prospectus to “Hansen Medical,”
“Hansen,” the “Company,” “we,” “us,” “our,” or similar references refer to Hansen Medical, Inc., and its subsidiaries on a consolidated basis, except where the context otherwise requires or as
otherwise indicated.
We have applied for trademark registration of, and claim trademark rights in, “Artisan
Extend,” “Magellan” and “NorthStar.” We have obtained trademark registration for, and claim trademark rights in “Hansen Medical,” “Hansen Medical (with Heart Design),” “Heart Design (Logo),”
“Sensei,” “Lynx,” “Artisan,” “Instinctive Motion,” “Fine Force Technology,” “IntelliSense” and “CoolSense.” This report also includes other trademarks, service marks and trade
names of other companies.
S-ii
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights certain information about us, this offering and selected information contained elsewhere in or incorporated by
reference into this prospectus supplement or the accompanying prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether to invest in our securities. For a more complete
understanding of our company and this offering, we encourage you to read and consider carefully the more detailed information and financial statements and related notes thereto in this prospectus supplement and the accompanying prospectus, including
the information incorporated by reference into this prospectus supplement and the accompanying prospectus, and the information included in any free writing prospectus that we have authorized for use in connection with this offering, including the
information referred to under the heading “Risk Factors” in this prospectus supplement on page S-4, in the accompanying prospectus on page 3 and in the documents incorporated by reference into this prospectus supplement.
Company Overview
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 solid 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
®
Control Catheter and Artisan Extend™, or Artisan catheters, 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 outcomes and permitting complex procedures to be performed interventionally.
Our
Magellan
TM
Robotic System is a proprietary peripheral
vascular interventional platform that, used in combination with the Magellan™ Robotic Catheter, has the potential to provide endovascular specialists with vessel navigation, catheter stability during the manual delivery and placement of
therapeutic devices, reduced procedural radiation exposure and fatigue, and precise robotic control of distal catheter tips. The Magellan Robotic System with the Magellan Robotic Catheter 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 is designed to provide a robotically stabilized
conduit for the manual placement and delivery of other companies’ 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.
Risks Associated with our Business
Our business is subject to numerous risks, as described more fully and incorporated by reference into the section entitled “Risk Factors” immediately following this prospectus supplement
summary.
S-1
Corporate Information
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 supplement and the
accompanying prospectus, and you should not consider it part of this prospectus supplement and the accompanying prospectus.
S-2
THE OFFERING
|
Common stock offered by us
|
Shares of our common stock having an aggregate offering price of up to $25 million.
|
|
Common stock to be outstanding after this offering
|
Up to 79,333,948 shares, assuming sales at a price of $2.12 per share, which was the closing price on The NASDAQ Global Market on March 13, 2013. The actual number of shares issued will
vary depending on the sales price under this offering.
|
|
Manner of offering
|
“At-the-market” offering that may be made from time to time through our sales agent, Cantor Fitzgerald & Co. See “Plan of Distribution” on page S-11.
|
|
Use of proceeds
|
We currently intend to use the net proceeds from this offering, if any, for general corporate purposes, including capital expenditures and working capital. We may also use a portion of the net
proceeds from this offering to repay outstanding debt under our loan agreement with Oxford Finance LLC and Silicon Valley Bank. In addition, we may use a portion of the net proceeds from this offering to acquire or invest in other businesses,
technologies, products or intellectual property, although we have no present commitments or agreements to do so at this time. See “Use of Proceeds” on page S-8 of this prospectus supplement.
|
|
Risk factors
|
Investing in our securities involves a high degree of risk. Before making an investment decision, you should read the information contained in or incorporated by reference under the heading
“Risk Factors” beginning on page S-4 of this prospectus supplement, on page 3 of the accompanying prospectus and in the documents incorporated by reference into this prospectus supplement.
|
|
NASDAQ Global Market symbol
|
“HNSN.”
|
The number of shares of our common
stock that will be outstanding immediately after this offering is based on 67,541,496 shares of common stock outstanding as of March 8, 2013 and excludes:
|
|
•
|
|
7,223,576 shares of common stock issuable upon the exercise of outstanding options as of March 8, 2013, with a weighted average exercise price of
$4.43 per share;
|
|
|
•
|
|
729,447 shares of common stock issuable upon the vesting of outstanding restricted stock units outstanding as of March 8, 2013;
|
|
|
•
|
|
660,793 shares of common stock issuable upon the exercise of outstanding warrants as of March 8, 2013, with an exercise price of $2.27 per share;
and
|
|
|
•
|
|
5,746,389 shares of common stock reserved for future issuance as of March 8, 2013 under our 2006 Equity Incentive Plan and 3,088,118 shares of
common stock reserved for future issuance as of March 8, 2013 under our 2006 Employee Stock Purchase Plan.
|
S-3
RISK FACTORS
An investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should
consider carefully the risks and uncertainties described below and discussed under the section entitled “Risk Factors” contained in our Annual Report on Form 10-K for the year ended December 31, 2012, which is incorporated by
reference into this prospectus supplement and the accompanying prospectus in its entirety, as updated or superseded by the risks and uncertainties described under similar headings in the other documents that are filed after the date hereof and
incorporated by reference into this prospectus supplement and the accompanying prospectus, together with other information in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference and any free writing
prospectus that we have authorized for use in connection with this offering. The risks described in these documents are not the only ones we face, but those that we currently consider to be material. There may be other unknown or unpredictable
economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used
to anticipate results or trends in future periods. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be seriously harmed. This could cause the trading price of our common stock to
decline, resulting in a loss of all or part of your investment. Please also read carefully the section below entitled “Forward-Looking Statements.”
Additional Risks Related to This Offering and our Securities
Management will have
broad discretion as to the use of the proceeds from this offering and may not use the proceeds effectively.
Because we
have not designated the amount of net proceeds from this offering to be used for any particular purpose, our management will have broad discretion as to the application of the net proceeds from this offering and could use them for purposes other
than those contemplated at the time of the offering. Our management may use the net proceeds for corporate purposes that may not improve our financial condition or market value.
You will experience immediate and substantial dilution.
The
offering price per share in this offering may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an aggregate of 11,792,452 shares of our common stock are sold at a price of $2.12 per
share, the last reported sale price of our common stock on The NASDAQ Global Market on March 13, 2013, for aggregate gross proceeds of approximately $25 million, and after deducting commissions and estimated aggregate offering expenses
payable by us, you will experience immediate dilution of $1.50 per share, representing the difference between our as adjusted net tangible book value per share as of December 31, 2012 after giving effect to this offering and the assumed
offering price. In addition, we are not restricted from issuing additional securities in the future, including shares of common stock, securities that are convertible into or exchangeable for, or that represent the right to receive, common stock or
substantially similar securities. The issuance of these securities may cause further dilution to our stockholders. The exercise of outstanding stock options and warrants and the vesting of outstanding restricted stock may also result in further
dilution of your investment. See the section entitled “Dilution” on page S-9 below for a more detailed illustration of the dilution you may incur if you participate in this offering.
You may experience future dilution as a result of future equity offerings.
In order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible
into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the price per share paid by
investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per share at which we sell additional shares of our common stock, or securities convertible
or exchangeable into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
S-4
The trading price of our common stock has been volatile and is likely to be volatile in the future.
The trading price of our common stock has been highly volatile. Further, our common stock has a limited trading
history. Since our initial public offering in November 2006 through February 28, 2013, our stock price has fluctuated from a low of $1.24 to a high of $39.32. The market price for our common stock may be affected by a number of factors:
|
|
•
|
|
the announcement of our operating results, including the number of systems sold during a period and our revenue for the period, and the comparison of
these results to the expectations of analysts and investors;
|
|
|
•
|
|
the receipt, denial or timing of regulatory clearances, approvals or actions of our products or competing products;
|
|
|
•
|
|
sales of common stock or other debt or equity securities by us or our stockholders in the future;
|
|
|
•
|
|
the success of any collaborations we may undertake with other companies;
|
|
|
•
|
|
our ability to develop, introduce and market new or enhanced versions of our products on a timely basis;
|
|
|
•
|
|
additions or departures of key scientific or management personnel;
|
|
|
•
|
|
the pace of enrollment or results of our 300 patient clinical trial or any other clinical trials;
|
|
|
•
|
|
changes in policies affecting third-party coverage and reimbursement in the United States and other countries;
|
|
|
•
|
|
ability of our products to achieve market success;
|
|
|
•
|
|
the performance of third-party contract manufacturers and component suppliers;
|
|
|
•
|
|
our ability to develop sales and marketing capabilities;
|
|
|
•
|
|
our ability to manufacture our products to meet commercial and regulatory standards;
|
|
|
•
|
|
our ability to manage costs and improve margins;
|
|
|
•
|
|
actual or anticipated variations in our results of operations or those of our competitors;
|
|
|
•
|
|
announcements of new products, technological innovations or product advancements by us or our competitors;
|
|
|
•
|
|
announcements of acquisitions or dispositions by us or our competitors;
|
|
|
•
|
|
developments with respect to patents and other intellectual property rights;
|
|
|
•
|
|
disputes or other developments relating to proprietary rights, including patents, litigation matters and our ability to obtain patent protection for
our technologies;
|
|
|
•
|
|
trading volume of our common stock;
|
|
|
•
|
|
our announcements of guidance regarding future operating or financial results which fails to meet investor or analyst expectations or which differs
from our previously-announced guidance;
|
|
|
•
|
|
changes in earnings estimates or recommendations by securities analysts, failure to obtain analyst coverage of our common stock or our failure to
achieve analyst earnings estimates;
|
|
|
•
|
|
public statements by analysts or clinicians regarding their perceptions of the effectiveness of our products;
|
|
|
•
|
|
developments in our industry;
|
|
|
•
|
|
general market conditions and other factors unrelated to our operating performance or the operating performance of our competitors; and
|
|
|
•
|
|
the impact of shareholder lawsuits and governmental investigations both on us and on our public perception.
|
S-5
The stock prices of many companies in the medical device industry have experienced wide
fluctuations that have often been unrelated to the operating performance of these companies. Following periods of volatility in the market price of a company’s securities, stockholders have often instituted class action securities litigation
against those companies. Additional class action securities litigation, if instituted against us, could result in substantial costs and a diversion of our management resources, which could significantly harm our business.
Sales of a significant number of shares of our common stock in the public markets, or the perception that such sales could occur, could depress the
market price of our common stock.
Sales of a substantial number of shares of our common stock in the public markets
could depress the market price of our common stock and impair our ability to raise capital through the sale of additional equity securities. We cannot predict the effect that future sales of our common stock would have on the market price of our
common stock.
We have not paid dividends in the past and do not expect to pay dividends in the future, and any return on investment may
be limited to the value of our common stock.
We have never paid dividends on our common stock and do not anticipate
paying dividends on our common stock in the foreseeable future. The payment of dividends on our common stock will depend on our earnings, financial condition and other business and economic factors affecting us at such time as our Board of Directors
may consider relevant. If we do not pay dividends, our common stock may be less valuable because a return on your investment will only occur if our stock price appreciates. Pursuant to our loan agreement with Oxford Finance LLC and Silicon Valley
Bank, we must obtain Oxford Finance LLC’s and Silicon Valley Bank’s prior written consent in order to pay any dividends on our common stock.
S-6
FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying prospectus, the documents we have filed with the Commission that are incorporated by
reference and any free writing prospectus that we have authorized for use in connection with this offering contain “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the
Securities Exchange Act of 1934, as amended, or the Exchange Act, that involve risks and uncertainties, as well as assumptions, that, if they never materialize or prove incorrect, could cause our results to differ materially from those expressed or
implied by such forward-looking statements. Forward-looking statements generally are identified by the words “may,” “will,” “project,” “might,” “expects,” “anticipates,”
“believes,” “intends,” “estimates,” “should,” “could,” “would,” “strategy,” “plan,” “continue,” “pursue,” or the negative of these words or other
words or expressions of similar meaning. All statements other than statements of historical fact are statements that could be deemed forward-looking statements. For example, forward-looking statements include statements about our future financial
and operating results, plans, expectations for potential research and development payments, milestone payments, royalty payments, cash burn rates, timing of achieving positive cash flow, potential revenue and profits of a combined company, costs and
expenses, interest rates, outcome of contingencies, financial condition, liquidity, business strategies and cost savings, any statements of the plans, strategies and objectives of management for future operations, any statements concerning our
product candidates and product development, any statements regarding future economic conditions or performance, statements of belief and any statement of assumptions underlying any of the foregoing. We discuss in greater detail, and incorporate by
reference into this prospectus supplement and the accompanying prospectus in their entirety, many of these risks and uncertainties under the heading “Risk Factors” beginning on page S-4 of this prospectus supplement. We may not actually
achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements.
If any of these risks or uncertainties materializes or any of these assumptions proves incorrect, our results could differ materially from the expectations in these statements.
The forward-looking statements included in this prospectus supplement are made only as of the date of this prospectus supplement, and we
are not under any obligation to update our respective forward-looking statements and do not intend to do so. You should not assume that the information contained in this prospectus supplement or the accompanying prospectus is accurate as of any date
other than the date on the front of this prospectus supplement or the accompanying prospectus, as applicable, or that any information incorporated by reference into this prospectus supplement or the accompanying prospectus is accurate as of any date
other than the date of the document so incorporated by reference.
You should read this prospectus supplement, the
accompanying prospectus, the documents we have filed with the Commission that are incorporated by reference and any free writing prospectus that we have authorized for use in connection with this offering completely and with the understanding that
our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary statements.
S-7
USE OF PROCEEDS
We currently intend to use the net proceeds from this offering, if any, for general corporate purposes, including capital expenditures
and working capital. We may also use a portion of the net proceeds from this offering to repay outstanding debt under our loan agreement with Oxford Finance LLC and Silicon Valley Bank. In addition, we may use a portion of the net proceeds from this
offering to acquire or invest in other businesses, technologies, products or intellectual property, although we have no present commitments or agreements to do so at this time.
As of December 31, 2012, we had borrowed $30 million under our loan agreement with Oxford Finance LLC and Silicon Valley Bank. Under
this agreement, we are obligated to pay interest only on the loan through June 30, 2013. The loan bears interest at a stated rate of 9.45% and includes a final interest payment of 3.95% of the original principal. Payments on the loan continue
through January 1, 2016. At our option, we may prepay all of the outstanding principal balance, subject to a pre-payment fee of (a) 3.00% of the principal amount of the loan then outstanding if the prepayment is made on before
December 9, 2013 or (b) 1.50% of the principal amount of the loan then outstanding if the prepayment is made after December 9, 2014.
As of the date of this prospectus supplement, we cannot specify with certainty all of the particular uses for the net proceeds to us from this offering. As a result, our management will have broad
discretion regarding the timing and application of the net proceeds from this offering. Pending the uses described above, we intend to invest the net proceeds in interest-bearing, investment-grade securities.
S-8
DILUTION
If you invest in this offering, your ownership interest will be diluted to the extent of the difference between the public offering price
per unit and the as adjusted net tangible book value per share after giving effect to this offering. We calculate net tangible book value per share by dividing the net tangible book value, which is tangible assets less total liabilities, by the
number of outstanding shares of our common stock. Dilution represents the difference between the portion of the amount per share paid by purchasers of shares in this offering and the as adjusted net tangible book value per share of our common stock
immediately after giving effect to this offering. Our net tangible book value as of December 31, 2012 was approximately $24.7 million, or $0.37 per share.
After giving effect to the sale of our common stock in the aggregate amount of approximately $25 million at an assumed offering price of $2.12 per share, the last reported sale price of our common stock
on The NASDAQ Global Market on March 13, 2013, and after deducting estimated offering commissions and expenses payable by us, our net tangible book value as of December 31, 2012 would have been $48.8, or $0.62 per share of common stock.
This represents an immediate increase in the net tangible book value of $0.25 per share to our existing stockholders and an immediate dilution in net tangible book value of $1.50 per share to new investors. The following table illustrates this per
share dilution:
|
|
|
|
|
|
|
|
|
|
|
Assumed public offering price per share
|
|
|
|
|
|
$
|
2.12
|
|
|
Net tangible book value per share as of December 31, 2012
|
|
$
|
0.37
|
|
|
|
|
|
|
Increase in net tangible book value per share attributable to this offering
|
|
$
|
0.25
|
|
|
|
|
|
|
As adjusted net tangible book value per share as of December 31, 2012, after giving effect to this offering
|
|
|
|
|
|
$
|
0.62
|
|
|
Dilution per share to new investors purchasing shares in this offering
|
|
|
|
|
|
$
|
1.50
|
|
The table above assumes for illustrative purposes that an aggregate of 11,792,452 shares of our common
stock are sold at a price of $2.12 per share, the last reported sale price of our common stock on The NASDAQ Global Market on March 13, 2013, for aggregate gross proceeds of approximately $25 million. The shares sold in this offering, if
any, will be sold from time to time at various prices. An increase of $0.50 per share in the price at which the shares are sold from the assumed offering price of $2.12 per share shown in the table above, assuming all of our common stock in the
aggregate amount of approximately $25 million is sold at that price, would increase our adjusted net tangible book value per share after the offering to $0.64 per share and would increase the dilution in net tangible book value per share to new
investors in this offering to $1.98 per share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $0.50 per share in the price at which the shares are sold from the assumed offering price of $2.12 per
share shown in the table above, assuming all of our common stock in the aggregate amount of approximately $25 million is sold at that price, would decrease our adjusted net tangible book value per share after the offering to $0.59 per share and
would decrease the dilution in net tangible book value per share to new investors in this offering to $1.03 per share, after deducting commissions and estimated aggregate offering expenses payable by us. This information is supplied for illustrative
purposes only.
S-9
The above discussion and tables also assume no exercise of any outstanding stock options or
warrants or vesting of outstanding restricted stock units. As of December 31, 2012, there were:
|
|
•
|
|
7,175,820 shares of common stock issuable upon the exercise of outstanding options with a weighted-average exercise price of $3.97 per share;
|
|
|
•
|
|
1,364,768 shares of common stock issuable upon the vesting of outstanding restricted stock units; 2,723,853 and 2,338,118 shares of common stock
reserved for future issuance under our 2006 Equity Incentive Plan and our 2006 Employee Stock Purchase Plan, respectively; and
|
|
|
•
|
|
660,793 shares of common stock issuable upon the exercise of outstanding warrants with an exercise price of $2.27 per share.
|
To the extent that options, warrants or restricted stock outstanding as of December 31, 2012 have been
or are exercised or vest, as applicable, or other shares are issued, investors purchasing shares in this offering could experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic
considerations, even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could
result in further dilution to our stockholders.
S-10
PLAN OF DISTRIBUTION
We have entered into a Controlled Equity Offering
SM
Sales Agreement, or the sales agreement, with Cantor Fitzgerald & Co., or Cantor, under which we may offer
and sell shares of our common stock at an aggregate purchase price of up to $25,000,000 from time to time through Cantor acting as agent. Cantor may sell the common stock by any method that is deemed to be an “at-the-market” equity
offering as defined in Rule 415 promulgated under the Securities Act, including sales made directly on or through The NASDAQ Global Market or any other existing trading market for the common stock in the United States or to or through a market
maker. Cantor may also sell the common stock in privately negotiated transactions.
Each time we wish to issue and sell common
stock under the sales agreement, we will notify Cantor of the number of shares to be issued, the dates on which such sales are anticipated to be made and any minimum price below which sales may not be made. Once we have so instructed Cantor, unless
Cantor declines to accept the terms of such notice, Cantor has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of
Cantor under the sales agreement to sell our common stock are subject to a number of conditions that we must meet.
The
settlement between us and Cantor is generally anticipated to occur on the third trading day following the date on which the sale was made. Sales of our common stock as contemplated in this prospectus supplement will be settled through the facilities
of The Depository Trust Company or by such other means as we and Cantor may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
We will pay Cantor a commission equal to an aggregate of 3.0% of the gross proceeds we receive from the sales of our common stock.
Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. In connection with the sale of the common
stock on our behalf, Cantor will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of Cantor will be deemed to be underwriting commissions or discounts. We have agreed to provide
indemnification and contribution to Cantor with respect to certain civil liabilities, including liabilities under the Securities Act. In addition, we have agreed to reimburse Cantor for the fees and disbursements of its counsel, payable upon
execution of the sales agreement, in an amount not to exceed $50,000. We estimate that the total expenses for the offering, but excluding any underwriter fees or expense reimbursement payable to Cantor under the terms of the sales agreement, will be
approximately $213,000.
The offering of our common stock pursuant to the sales agreement will terminate upon the earlier of
(i) the sale of all shares of our common stock subject to the sales agreement, or (ii) termination of the sales agreement as permitted therein. We and Cantor may each terminate the sales agreement at any time upon ten days prior notice.
This summary of the material provisions of the sales agreement does not purport to be a complete statement of its terms and
conditions. A copy of the sales agreement is filed as an exhibit to a report filed under the Exchange Act and incorporated by reference in this prospectus supplement. See “Where You Can Find More Information” and “Incorporation of
Certain Information by Reference” below.
Cantor and its affiliates may in the future provide various investment banking,
commercial banking and other financial services for us and our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M under the Exchange Act, Cantor will not engage in any market making
activities involving our common stock while the offering is ongoing under this prospectus supplement.
A prospectus supplement
and the accompanying prospectus in electronic format may be made available on a website maintained by Cantor, and Cantor may distribute the prospectus supplement and the accompanying prospectus electronically.
S-11
LEGAL MATTERS
The validity of the shares of common stock being offered by this prospectus supplement and accompanying prospectus will be passed upon
for us by Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, Redwood City, California. Cantor is being represented in connection with this offering by Reed Smith LLP, New York, New York.
EXPERTS
The financial statements of the Company incorporated in this prospectus supplement and the accompanying prospectus by reference from the Company’s Annual Report on Form 10-K for the year ended
December 31, 2012 and the effectiveness of the Company’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, (which
reports (1) express an unqualified opinion on the financial statements and includes an explanatory paragraph regarding the Company’s change in revenue recognition and (2) express an unqualified opinion on the effectiveness of internal
control over financial reporting). 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.
S-12
WHERE YOU CAN FIND MORE INFORMATION
This prospectus supplement and the accompanying prospectus are part of the registration statement on Form S-3 we filed with the
Commission under the Securities Act and do not contain all the information set forth or incorporated by reference in the registration statement. Whenever a reference is made in this prospectus supplement or the accompanying prospectus to any of our
contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated by reference in this
prospectus supplement and the accompanying prospectus for a copy of such contract, agreement or other document. Because we are subject to the information and reporting requirements of the Exchange Act, we file annual, quarterly and current reports,
proxy statements and other information with the Commission. Our filings with the Commission are available to the public over the Internet at the Commission’s website at http://www.sec.gov. You may also read and copy any document we file at the
Commission’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330 for further information on the operation of the Public Reference Room.
S-13
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Commission allows us to “incorporate by reference” the information we file with it, which means that we can
disclose important information to you by referring you to those documents instead of having to repeat the information in this prospectus supplement. The information incorporated by reference is considered to be part of this prospectus supplement and
the accompanying prospectus, and information contained in this prospectus supplement and the accompanying prospectus and later information that we file with the Commission will automatically update and supersede prior information. We incorporate by
reference the documents listed below that we have filed with the Commission (File No. 001-33151) and any future filings (other than Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01 and exhibits filed on such form
that are related to such items) we make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the prospectus supplement and before the sale of all the securities covered by this prospectus supplement:
|
|
•
|
|
our annual report on Form 10-K for the fiscal year ended December 31, 2012;
|
|
|
•
|
|
our current report on Form 8-K filed on March 15, 2013;
|
|
|
•
|
|
our definitive proxy statement on Schedule 14A, filed on March 30, 2012 (excluding those portions that are not incorporated by reference into our
annual report on Form 10-K for the fiscal year ended December 31, 2011);
|
|
|
•
|
|
the description of our common stock contained in our Registration Statement on Form 8-A filed November 14, 2006; and
|
|
|
•
|
|
all documents filed by us with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus supplement
and before termination of this offering.
|
To the extent that any information contained in any filings we
have made or will make with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, or any exhibit thereto, was furnished, rather than filed with the Commission, such information or exhibit is specifically not incorporated by
reference in this prospectus supplement.
These documents may also be accessed on our website at www.hansenmedical.com. Except
as otherwise specifically incorporated by reference in this prospectus supplement, information contained in, or accessible through, our website is not a part of this prospectus supplement.
We will furnish without charge to you, upon written or oral request, a copy of any or all of the documents incorporated by reference,
including exhibits to these documents by telephoning us at (650) 404-5800 or writing us at the following address:
Hansen
Medical, Inc.
800 East Middlefield Road
Mountain View, CA 94043
Attn: Investor Relations
S-14
PROSPECTUS
$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 3 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.
April 23,
2012
TABLE OF CONTENTS
i
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.
1
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
.
2
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.
3
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:
|
|
•
|
|
our plans to grow and expand our sales and marketing capabilities;
|
|
|
•
|
|
our ability to manage our manufacturing processes, including third party manufacturers;
|
|
|
•
|
|
our ability to maintain existing regulatory clearances, expand approvals for existing products and obtain approvals of new products;
|
|
|
•
|
|
our plans to increase market acceptance for our products and our efforts to develop new products and enter new markets;
|
|
|
•
|
|
our ability to obtain and maintain intellectual property protection for our products;
|
|
|
•
|
|
our financing needs and the use of the proceeds from this offering;
|
|
|
•
|
|
the impact of credit, financial and general economic conditions on the purchases of our products;
|
|
|
•
|
|
our ability to remediate material weaknesses in internal control over financial reporting; and
|
|
|
•
|
|
our ability to respond to litigation or government enforcement actions related to the restatement of our financial statements.
|
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.
4
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.
5
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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
|
2007
|
|
|
2008
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
|
|
(in thousands)
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed charges (1)
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
(1)
|
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.
|
6
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:
|
|
•
|
|
the title and authorized denominations of those debt securities;
|
|
|
•
|
|
the aggregate principal amount of the debt securities and any limit on the aggregate principal amount of that series of debt securities;
|
|
|
•
|
|
the date or dates on which principal and premium, if any, of the debt securities of that series is payable;
|
|
|
•
|
|
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;
|
|
|
•
|
|
the right, if any, to extend the interest payment periods and the duration of the extensions;
|
|
|
•
|
|
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;
|
7
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
any provisions granting special rights to the holders of debt securities upon the occurrence of specified events;
|
|
|
•
|
|
the events of default and covenants relating to the debt securities that are in addition to, modify or delete those described in this prospectus;
|
|
|
•
|
|
conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto;
|
|
|
•
|
|
whether and upon what terms the debt securities may be defeased, if different from the provisions set forth in the indenture;
|
|
|
•
|
|
the nature and terms of any security for any secured debt securities;
|
|
|
•
|
|
the terms applicable to any debt securities issued at a discount from their stated principal amount; and
|
|
|
•
|
|
any other specific terms of any debt securities.
|
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.
8
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:
|
|
•
|
|
the conversion or exchange ratio (or the calculation method);
|
|
|
•
|
|
the conversion or exchange period (or how the period will be determined);
|
|
|
•
|
|
provisions regarding our ability or the ability of any holder to convert or exchange the debt securities;
|
|
|
•
|
|
events requiring adjustment to the conversion or exchange ratio; and
|
|
|
•
|
|
provisions affecting conversion or exchange in the event of our redemption of the debt securities.
|
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.
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:
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
9
|
|
•
|
|
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;
|
|
|
•
|
|
certain events in bankruptcy, insolvency or reorganization relating to us; or
|
|
|
•
|
|
any other event of default provided in the applicable officer’s certificate, resolution of our board of directors or the supplemental indenture
under which we issue a series of debt securities.
|
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:
|
|
•
|
|
the holder has previously given to the trustee written notice of a default and continuance of such default;
|
|
|
•
|
|
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;
|
|
|
•
|
|
the requesting holders have offered the trustee indemnity for the reasonable costs, expenses and liabilities that may be incurred by bringing the
action;
|
|
|
•
|
|
the trustee has not instituted the action within 60 days of the request and offer of indemnity; and
|
|
|
•
|
|
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.
|
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.
10
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:
|
|
•
|
|
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;
|
|
|
•
|
|
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
|
|
|
•
|
|
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.
|
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:
|
|
•
|
|
evidence the assumption by a successor entity of our obligations;
|
|
|
•
|
|
add to our covenants for the benefit of the holders of debt securities, or to surrender any rights or power conferred upon us;
|
|
|
•
|
|
add any additional events of default;
|
|
|
•
|
|
cure any ambiguity or omission or correct any inconsistency or defect in the indenture;
|
|
|
•
|
|
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;
|
|
|
•
|
|
add guarantees of or secure any debt securities;
|
|
|
•
|
|
establish the forms or terms of debt securities of any series;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
11
|
|
•
|
|
provide for uncertificated debt securities in addition to or in place of all, or any series of, certificated debt securities;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
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
|
|
|
•
|
|
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.
|
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:
|
|
•
|
|
change the final maturity of any debt security;
|
|
|
•
|
|
change or reduce the principal amount or premium, if any;
|
|
|
•
|
|
change or reduce the interest rate;
|
|
|
•
|
|
change the method of calculating the interest rate;
|
|
|
•
|
|
reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration;
|
|
|
•
|
|
change the currency in which the principal, and any premium or interest, is payable;
|
|
|
•
|
|
impair the right to institute suit for the enforcement of any payment on any debt security when due;
|
|
|
•
|
|
if applicable, adversely affect the right of a holder to convert or exchange a debt security; or
|
|
|
•
|
|
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.
|
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:
|
|
•
|
|
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
|
12
|
|
•
|
|
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.
|
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:
|
|
•
|
|
by the depositary for the registered global security to its nominee;
|
|
|
•
|
|
by a nominee of the depositary to the depositary or another nominee of the depositary; or
|
|
|
•
|
|
by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
|
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:
|
|
•
|
|
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;
|
|
|
•
|
|
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;
|
|
|
•
|
|
any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to be credited; and
|
|
|
•
|
|
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.
|
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:
|
|
•
|
|
will not be entitled to have the debt securities represented by a registered global security registered in their names;
|
|
|
•
|
|
will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
|
|
|
•
|
|
will not be considered the owners or holders of the debt securities under the relevant indenture.
|
13
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
14
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 person’s own affairs.
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.
15
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.
16
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.
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:
|
|
•
|
|
prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
|
|
|
•
|
|
the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers and (b) shares owned by employee stock plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
|
|
|
•
|
|
on or subsequent to the date of the transaction, the business combination is approved by the board 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
/
3
% of the outstanding voting stock which is not owned by the interested stockholder.
|
Section 203 defines a business combination to include:
|
|
•
|
|
any merger or consolidation involving the corporation and the interested stockholder;
|
|
|
•
|
|
any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
|
|
|
•
|
|
subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested
stockholder; and
|
|
|
•
|
|
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through
the corporation.
|
In general, Section 203 defines an interested stockholder as any entity or person
beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
17
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:
|
|
•
|
|
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;
|
|
|
•
|
|
provide that the authorized number of directors may be changed only by resolution of the board of directors;
|
|
|
•
|
|
provide that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative vote of a
majority of directors then in office, even if less than a quorum;
|
|
|
•
|
|
divide our board of directors into three classes;
|
|
|
•
|
|
require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not be taken by
written consent;
|
|
|
•
|
|
provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a
meeting of stockholders must provide notice in writing in a timely manner, and also specify requirements as to the form and content of a stockholder’s notice;
|
|
|
•
|
|
do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any
election of directors to elect all of the directors standing for election, if they should so choose);
|
|
|
•
|
|
provide that special meetings of our stockholders may be called only by the 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
|
|
|
•
|
|
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.
|
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.
18
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:
|
|
•
|
|
the title of the warrants;
|
|
|
•
|
|
the aggregate number of the warrants;
|
|
|
•
|
|
the price or prices at which the warrants will be issued;
|
|
|
•
|
|
the designation, terms and number of shares of common stock or principal amount of debt securities purchasable upon exercise of the warrants;
|
|
|
•
|
|
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;
|
|
|
•
|
|
the date, if any, on and after which the warrants and the related debt securities or common stock will be separately transferable;
|
|
|
•
|
|
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;
|
|
|
•
|
|
the date on which the right to exercise the warrants shall commence and the date on which that right shall expire;
|
|
|
•
|
|
the minimum or maximum amount of the warrants which may be exercised at any one time;
|
|
|
•
|
|
information with respect to book- entry procedures, if any;
|
|
|
•
|
|
a discussion of certain federal income tax considerations; and
|
|
|
•
|
|
any other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
|
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.
19
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:
|
|
•
|
|
the name or names of any underwriters, dealers or agents;
|
|
|
•
|
|
the purchase price of our securities and the proceeds we will receive from the sale;
|
|
|
•
|
|
any options under which underwriters may purchase additional securities from us;
|
|
|
•
|
|
any agency fees or underwriting discounts and other items constituting compensation to underwriters, dealers or agents;
|
|
|
•
|
|
any public offering price;
|
|
|
•
|
|
any discounts or concessions allowed or reallowed or paid to dealers; and
|
|
|
•
|
|
any securities exchange or market on which our securities offered in the prospectus supplement may be listed or quoted.
|
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.
20
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 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 maker’s bid, however, the passive market maker’s 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.
21
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 Company’s Annual Report on Form 10-K for the year ended December 31, 2011 and the effectiveness of the Company’s
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 Company’s 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 Commission’s 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.
22
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:
|
|
•
|
|
Annual Report on Form 10-K for the year ended December 31, 2011 filed on March 15, 2012.
|
|
|
•
|
|
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.
|
|
|
•
|
|
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.
|
|
|
•
|
|
The description of our common stock contained in our Form 8-A filed on November 14, 2006.
|
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
23
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
