If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check One):
SUBJECT TO COMPLETION, DATED NOVEMBER 8, 2013
PROSPECTUS
HANSEN MEDICAL, INC.
5,291,005 Shares of Common Stock
This prospectus relates to the offer for sale by an existing holder of our common stock named in this prospectus of 5,291,005 shares of our
common stock, par value $0.0001 per share. The existing holder of our common stock is referred to as the selling stockholder throughout this prospectus. All references 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.
All of the shares of common stock offered by this prospectus are being sold by the selling stockholder. It is anticipated that the selling
stockholder will sell these shares of common stock from time to time in one or more transactions, negotiated or otherwise, at prevailing market prices or at prices otherwise negotiated. We will not receive any proceeds from the sales of shares of
common stock by the selling stockholder. We have agreed to pay all fees and expenses incurred by us incident to the registration of our common stock, including SEC filing fees. The selling stockholder will be responsible for all costs and expenses
in connection with the sale of their shares of common stock, including brokerage commissions or dealer discounts.
Our common stock is
currently traded on The NASDAQ Global Market under the symbol “HNSN.” On November 7, 2013, the last reported sales price for our common stock was $1.96 per share.
Investing in our securities involves substantial risks. You should carefully consider the matters discussed under the section entitled
“
Risk Factors
” on page 2 of this prospectus.
Neither the SEC nor any state securities
commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2013.
ABOUT THIS PROSPECTUS
This prospectus, which is part of a registration statement filed with the SEC, does not contain all of the information set forth or
incorporated by reference in the registration statement or the exhibits filed therewith. Statements contained or incorporated by reference in this prospectus about the provisions or contents of any agreement or other document are only summaries. If
SEC rules require that any agreement or document be filed as an exhibit to the registration statement, you should refer to that agreement or document for its complete contents. For further information with respect to us and the common stock offered
by this prospectus, please see the registration statement, the exhibits filed with the registration statement and the documents incorporated by reference therein. See “Where You Can Find Additional Information” and “Information
Incorporated by Reference”.
You should rely only on the information contained or incorporated by reference in this prospectus and
any applicable prospectus supplement. No person is authorized to give any information or to make any representation other than those contained or incorporated by reference in this prospectus, and, if made, such information or representation must not
be relied upon as having been given or authorized. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any security other than the securities offered by this prospectus, or an offer to sell or a solicitation of
an offer to buy any securities by anyone in any jurisdiction in which the offer or solicitation is not authorized or is unlawful. The delivery of this prospectus will not, under any circumstances, create any implication that the information is
correct as of any time subsequent to the date of this prospectus.
You should assume that the information contained or incorporated by
reference in this prospectus, any accompanying prospectus supplement or other offering materials is accurate only as of the dates of those documents or documents incorporated by reference, as applicable. Our business, financial condition, results of
operations and prospects may have changed since those dates.
i
PROSPECTUS SUMMARY
This summary highlights information included or incorporated by reference in this prospectus. This summary may not contain all of the
information that may be important to you. Before making an investment decision, you should read carefully this entire prospectus, any accompanying prospectus supplement and any other offering materials, together with the additional information
described under the heading “Where You Can Find Additional Information” on page 5 of this prospectus.
Our Business
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. Our Sensei
®
Robotic Catheter System, or Sensei system, is designed to allow physicians to instinctively navigate flexible catheters with stability
and control in interventional procedures. Our Magellan™ Robotic System is designed to allow physicians to navigate flexible catheters in the vasculature. We believe our systems and the corresponding disposable catheters will enable physicians
to perform procedures that historically have been too 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 systems have the potential to benefit patients, physicians, hospitals and third-party payors by providing clinical results and permitting more complex procedures to be performed interventionally.
In March 2007, we established Hansen Medical UK Ltd, a wholly-owned subsidiary located in the United Kingdom and, in May 2007, we established
Hansen Medical Deutschland, GmbH, a wholly-owned subsidiary located in Germany. Since inception, we have devoted the majority of our resources to the development and commercialization of our Sensei system and our Magellan Robotic System. Prior to
the second quarter of 2007, we were a development stage company with a limited operating history. In the second quarter of 2007 we obtained the necessary regulatory approvals and recorded our initial product revenues. To date, we have incurred net
losses in each year since our inception and, as of September 30, 2013, we had an accumulated deficit of $340.8 million. We expect our losses to continue through at least 2013 as we continue to expand the commercialization of our Sensei system,
our Magellan Robotic System and our catheters and continue to develop new products. We have financed our operations primarily through the public and private sale of equity securities, the issuance of debt, partnering and the licensing of
intellectual property.
We received CE Mark approval for our Sensei system in the fourth quarter of 2006 and made our first commercial
shipments to the European Union in the first quarter of 2007. In May 2007, we received CE Mark approval for our Artisan catheter and also received U.S. Food and Drug Administration, or FDA, clearance for the marketing of our Sensei system and
Artisan catheter for manipulation, positioning and control of certain mapping catheters during electrophysiology procedures. As a result, we recorded our first revenues in the second quarter of 2007. We received CE Mark approval for our Lynx
®
catheter in July 2010. In July 2011, we received CE Mark for our Magellan Robotic System and in October 2011 received a CE Mark for the NorthStar™ Robotic Catheter (now referred to as our
Magellan Robotic Catheter) and related accessories designed for use with the Magellan Robotic System. We received FDA clearance for the marketing of our Magellan Robotic System including the catheter and accessories in June 2012. We received FDA
clearance for our Artisan Extend Control Catheter in August 2012 and CE Mark approval for our Artisan Extend Control Catheter in December 2012.
We market our products in the United States primarily through a direct sales force of regional sales employees, supported by clinical account
managers who provide training, clinical support and other services to our customers. Outside the United States, primarily in the European Union, we use a combination of a direct sales force and distributors to market, sell and support our products.
Company 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 and the accompanying prospectus, and you should not consider it part of this prospectus.
Description of the Private Placement
On October 26, 2012, we consummated a private placement of 5,291,005 shares of our common stock to an “accredited investor” as
defined by Rule 501(a) promulgated under the Securities Act pursuant to an exemption from registration provided by Regulation D promulgated under the Securities Act. In accordance with the registration rights we granted in the stock purchase
agreement for the private placement, we are registering for resale by the selling stockholder described herein the shares of our common stock issued in the private placement.
THE OFFERING
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Common stock offered by the selling stockholder
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Up to 5,291,005 shares of our common stock.
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Common stock outstanding prior to the offering
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96,416,954
(1)
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Common stock to be outstanding after the offering
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96,416,954
(1)
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Use of Proceeds
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We will not receive any proceeds from the sales of shares of common stock by the selling stockholder.
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The NASDAQ Global Market Symbol
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Our common stock is currently traded on The NASDAQ Global Market under the symbol “HNSN.”
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(1)
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Based upon the total number of issued and outstanding shares as of November 1, 2013.
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1
RISK FACTORS
An investment in our common stock involves a high degree of risk. Before deciding to invest in our common stock, you should carefully
consider the specific risks described in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, the risk factors described under the caption “Risk Factors” in any applicable prospectus supplement and any risk
factors set forth in our other filings with the SEC that are incorporated by reference into this prospectus. Each of the risks described in these documents could materially and adversely affect our business, financial condition, results of
operations and prospects, and could result in a partial or complete loss of your investment. See “Where You Can Find Additional Information” and “Information Incorporated by Reference” on page 5 of this prospectus. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also impair our operations.
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the documents incorporated by reference in
these documents contain forward-looking statements. In some cases, you can identify forward-looking statements by the following words: “may,” “will,” “could,” “would,” “should,” “expect,”
“intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,” “target,” “continue,” “ongoing” or the negative
of these terms or other comparable terminology, although not all forward-looking statements contain these words. These statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity,
performance or achievements to be materially different from the information expressed or implied by these forward-looking statements. Although we believe that we have a reasonable basis for each forward-looking statement contained in this
prospectus, we caution you that these statements are based on a combination of facts and factors currently known by us and our projections of the future, about which we cannot be certain. Many important factors affect our ability to achieve our
objectives, including:
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our ability to increase market adoption for our products;
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the rate at which our systems are used and our body of clinic data grows;
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our execution of plans to grow and expand our sales and marketing capabilities;
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our developmental efforts to reduce product costs and add new features and functionality;
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our ability to manage our manufacturing processes, including third party manufacturers;
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our ability to maintain existing regulatory clearances, expand approvals for existing products and obtain approvals of new products;
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our ability to obtain and maintain intellectual property protection for our products;
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our ability to recruit and retain key personnel;
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our financing needs; and
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the impact of credit, financial and general economic conditions on the purchases of our products.
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In addition, you should refer to the section of this prospectus 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.
2
USE OF PROCEEDS
The selling stockholder will receive all of the proceeds from this offering. We will not receive any proceeds from the sales of shares of
common stock by the selling stockholder.
DIVIDEND POLICY
To date, we have paid no cash dividends to our stockholders, and we do not expect to pay cash dividends in the foreseeable future on our
shares of common stock and are restricted from doing so under our existing loan documents.
PLAN OF
DISTRIBUTION
The common stock being offered for resale by the selling stockholder under this prospectus consists of 5,291,005 shares
of our common stock held by the sole investor in our private placement which closed on October 26, 2012, with gross proceeds to us of $10,000,000. The selling stockholder may, from time to time, sell, transfer or otherwise dispose of any or all
of the common stock covered hereby (the “shares”) or their interests in the shares on The NASDAQ Global Market or any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions
may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. The selling stockholder may use one or more of the
following methods when disposing of the shares or interests therein:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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privately negotiated transactions;
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through one or more underwriters on a firm commitment or best efforts basis;
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through the writing of options on shares, whether the options are listed on an options exchange or otherwise;
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a combination of any such methods of disposition; and
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any other method permitted pursuant to applicable law.
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The selling stockholder may also sell
the shares under Rule 144 under the Securities Act, if available, rather than under this prospectus. The selling stockholder has agreed that it shall not transfer the shares of common stock purchased in our private placement without our consent on
or before April 28, 2014.
The selling stockholders may effect transactions by selling shares directly to purchasers or to or through
broker-dealers. The broker-dealers may act as agents or principals. Broker-dealers engaged by the selling stockholder may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling
stockholder (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The compensation of any particular broker-dealer may be in excess of customary commissions.
The anti-manipulation rules of Regulation M promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
may apply to sales of common stock and the activities of the selling stockholder.
We are required to pay all fees and expenses incident
to the registration of the shares. We have also agreed to indemnify the selling stockholder against certain losses, claims, damages and liabilities, including liabilities under the Securities Act or otherwise. The selling stockholder will be
responsible for all costs and expenses in connection with the sale of their shares of common stock, including brokerage commissions or dealer discounts. In addition, in certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with. We have agreed to register or qualify the selling stockholder’s shares in these states as
necessary, subject to certain restrictions.
The selling stockholder has advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. There is no underwriter or coordinating broker acting in connection with the proposed sale of shares by the selling stockholder. The
selling stockholder may enter into hedging transactions with broker-dealers and the broker-dealers may engage in short sales of shares of common stock in the course of hedging the positions they assume with the selling stockholders, including,
without limitation, in connection with distributions of shares by those broker-dealers. The selling stockholder may enter into option or other transactions with broker-dealers that involve the delivery of shares of common stock offered hereby to the
broker-dealers, who may then resell or otherwise transfer those securities. Upon notification to us by the selling stockholder that any material arrangement has been entered into with broker-dealers for the sale or purchase of shares, we will file a
supplement to this prospectus, if required, disclosing:
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the name of the participating broker-dealers;
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the number of shares involved;
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the price at which such shares were sold;
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the commissions paid or discounts or concessions allowed to such broker-dealers, where applicable;
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that such broker-dealers did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and
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other facts material to the transaction.
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3
SELLING STOCKHOLDER
This prospectus covers the resale of shares of our common stock, which we sold in a private placement to the selling stockholder as an
“accredited investor” as defined by Rule 501(a) promulgated under the Securities Act pursuant to an exemption from registration provided by Regulation D promulgated under the Securities Act. The selling stockholder may from time to time
offer and sell under this prospectus any part of, all or none of the shares listed below. We are required, under the stock purchase agreement, to register for resale the shares of our common stock described in the table below. We are registering the
shares to permit the selling stockholder to resell the shares when and as it deems appropriate, subject to the restrictions on transfer set forth under “Plan of Distribution”.
The following table provides information regarding the selling stockholder, the number of shares of common stock beneficially owned by the
selling stockholder and the number of shares of common stock offered by the selling stockholder in this offering. This information has been obtained from the selling stockholder or in Schedules 13G or 13D and other public documents filed with the
SEC. Except as otherwise indicated, we believe the selling stockholder has sole voting and investment power with respect to all shares of common stock beneficially owned by it.
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Beneficial Owner
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Shares of Common Stock
Beneficially Owned Prior to
Offering (1)
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Percentage of Common
Stock Beneficially
Owned Prior to
Offering (1)
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Shares of Common
Stock Offered
Hereby
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Shares of Common Stock
Beneficially Owned
Following Offering
(1)(2)
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Percentage of Common
Stock Beneficially
Owned Following
Offering (1)(2)
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Intuitive Surgical Operations, Inc.
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5,291,005
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5.5
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%
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5,291,005
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—
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*
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*
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Represents less than 1%.
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(1)
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Beneficial ownership is determined in accordance with the rules and regulations of the SEC, and generally includes securities held by persons who have sole or shared voting power or investment power with respect to
those securities, and includes securities that are or will become exercisable within 60 days after November 1, 2013. Calculated on the basis of 96,416,954 shares of common stock, which is the number of shares of Company common stock outstanding
as of November 1, 2013.
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(2)
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Assumes all shares offered hereby are sold by the selling stockholder. However, the selling stockholder may offer and sell all or any part of the common stock covered by this prospectus. Therefore, no estimates can be
made as to the amount of shares of common stock that will be held by the selling stockholder after the completion of this offering. The selling stockholder has agreed that it will not transfer the shares of common stock purchased in our private
placement without our consent on or before April 28, 2014.
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4
DESCRIPTION OF SECURITIES
The class of securities offered under this prospectus is our common stock, which has been registered pursuant to Section 12 of the
Exchange Act.
LEGAL MATTERS
The validity of the shares of common stock being offered by this prospectus will be passed upon for us by Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP, Redwood City, California.
EXPERTS
The consolidated financial statements incorporated in this 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 are incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement on Form S-3 under the Securities Act with the SEC. This prospectus, which constitutes a part of the
registration statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules which are a part of the registration statement. For further information with respect to us and our securities,
please refer to the registration statement and the exhibits and schedules filed with it. We also file reports, proxy statements, and other information with the SEC to comply with the Exchange Act and these reports, proxy statements, and other
information, as well as the registration statement, can be inspected on the Internet at http://www.hansenmedical.com or through the SEC’s website at http://www.sec.gov. You may read and copy any document which we file with the SEC at the
SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of Public Reference Room by calling the SEC at 1–800–SEC–0330. To receive copies of public records not posted
to the SEC’s web site at prescribed rates, you may complete an online form at http://www.sec.gov, send a fax to (202) 772-9337 or submit a written request to the SEC, Office of FOIA/PA Operations, 100 F Street, N.E., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them under certain conditions, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be an important part of this prospectus and any prospectus supplement and any information that we file with the SEC
subsequent to this prospectus will automatically update and supersede this information. Our Exchange Act reports are filed under SEC file number 001-33151. The documents we are incorporating by reference are as follows:
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Our Annual Report on Form 10-K for the year ended December 31, 2012, filed with the SEC on March 18, 2013 as amended by our Annual Report on Form 10-K/A for the year ended December 31, 2012, filed with
the SEC on March 28, 2013;
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The information in our definitive proxy statement filed with the Securities and Exchange Commission on April 8, 2013 to the extent incorporated by reference in our Annual Report on Form 10-K for the year ended
December 31, 2012;
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Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2013, filed with the SEC on May 10, 2013; our Quarterly Report on Form 10-Q for the quarter ended June 30, 2013, filed with the SEC on
August 9, 2013; and our Quarterly Report on Form 10-Q for the quarter ended September 30, 2013, filed with the SEC on November 8, 2013;
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Our current reports on Form 8-K (other than information furnished rather than filed) filed with the SEC on March 18, 2013; May 8, 2013 (disclosing events under Item 8.01); June 4,
2013; June 28, 2013; July 10, 2013; July 11, 2013; July 17, 2013; July 23, 2013; July 29, 2013, July 31, 2013, August 8, 2013; and August 26, 2013, 2013; and
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The description of our common stock contained in our Registration Statement on Form 8-A filed November 14, 2006;
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All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial filing date of this prospectus,
through the date declared effective, until the termination of the offering of securities contemplated by this prospectus shall be deemed to be incorporated by reference into this prospectus; provided, however, that we are not incorporating, in each
case, any documents or information deemed to have been furnished and not filed in accordance with SEC rules. These documents that we file later with the SEC and that are incorporated by reference in this prospectus will automatically update
information contained in this prospectus or that was previously incorporated by reference into this prospectus. You will be deemed to have notice of all information incorporated by reference in this prospectus as if that information was included in
this prospectus.
We will provide to any person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or
all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus, at no cost to the requesting party, upon request to us in writing or by telephone using the following information:
Hansen Medical, Inc.
800 East
Middlefield Road
Mountain View, CA 94043
Attention: Chief Financial Officer
(650) 404-5800
5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the costs
and expenses payable by us relating to the sale of common stock being registered. All amounts are estimates except the SEC registration fee.
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SEC registration fee
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$
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1,253.93
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Printing expenses
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3,000.00
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Legal fees and expenses
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10,000.00
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Accounting fees and expenses
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20,000.00
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Total
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$
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34,253.93
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The selling stockholder will be responsible for all costs and expenses in connection with the sale of their
shares of common stock, including brokerage commissions or dealer discounts.
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Item 15.
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Indemnification of Directors and Officers
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We are incorporated under the laws of the
State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was
serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and,
with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided
such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is
adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or
director has actually and reasonably incurred. Our amended and restated certificate of incorporation and amended and restated bylaws provide for the indemnification of our directors and officers to the fullest extent permitted under the Delaware
General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
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transaction from which the director derives an improper personal benefit;
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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•
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unlawful payment of dividends or redemption of shares; or
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•
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breach of a director’s duty of loyalty to the corporation or its stockholders.
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Our
amended and restated certificate of incorporation and amended and restated bylaws include such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be
paid by us upon delivery to us of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by us.
Section 174 of the Delaware General Corporation Law provides, among other things, that a director, who willfully or negligently approves
of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing
his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
As permitted by the Delaware General Corporation Law, we have entered into indemnity agreements with each of our directors and certain of our
executive officers, the forms of which have been filed as exhibits to filings made with the Securities and Exchange Commission. The indemnification agreements provide that we will indemnify such persons against any and all expenses (including
attorneys’ fees), witness fees, damages, judgments, fines, settlements and other amounts incurred (including expenses of a derivative action) in connection with any action, suit or proceeding, whether actual or threatened, to which any such
person may be made a party by reason of the fact that such person is or was a director, an officer or an employee of Hansen Medical or any of its affiliated enterprises, provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to our best interests and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
We have an insurance policy covering our officers and directors with
respect to certain liabilities, including liabilities arising under the Securities Act of 1933, as amended, or otherwise.
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Item 16.
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Exhibits and Financial Statement Schedules
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The exhibits to this registration statement
are listed in the Exhibit Index on page II-4 hereof, which is incorporated by reference in this Item 16.
II-1
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in the registration statement.
Provided
,
however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration
statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided
,
however
, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Mountain View, State of California on November 8, 2013.
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HANSEN MEDICAL, INC.
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By:
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/s/ Bruce J Barclay
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Bruce J Barclay
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Bruce J Barclay and Peter J.
Mariani and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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NAME
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POSITION
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DATE
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/s/ Bruce J Barclay
Bruce J Barclay
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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November 8, 2013
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/s/ Peter J. Mariani
Peter J. Mariani
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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November 8, 2013
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/s/ Michael Eagle
Michael Eagle
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Chairman of the Board of Directors
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November 8, 2013
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/s/ Marjorie Bowen
Marjorie Bowen
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Director
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November 8, 2013
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/s/ Kevin Hykes
Kevin Hykes
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Director
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November 8, 2013
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/s/ Christopher P. Lowe
Christopher P. Lowe
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Director
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November 8, 2013
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/s/ Stephen Newman, M.D.
Stephen Newman, M.D.
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Director
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November 8, 2013
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/s/ William R. Rohn
William R. Rohn
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Director
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November 8, 2013
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/s/ Jack W. Schuler
Jack W. Schuler
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Director
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November 8, 2013
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/s/ Will K. Weinstein
Will K. Weinstein
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Director
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November 8, 2013
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/s/ Nadim Yared
Nadim Yared
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Director
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November 8, 2013
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II-3
EXHIBIT INDEX
The agreements included as exhibits to this registration statement contain representations and warranties by each of the parties to the
applicable agreement. These representations and warranties were made solely for the benefit of the other parties to the applicable agreement and (i) were not intended to be treated as categorical statements of fact, but rather as a way of
allocating the risk to one of the parties if those statements prove to be inaccurate; (ii) have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement; (iii) may apply
contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and (iv) were made only as of the date of the applicable agreement or such other date or dates as may be
specified in the agreement. The registrant acknowledges that, notwithstanding the inclusion of the foregoing cautionary statements, it is responsible for considering whether additional specific disclosures of material information regarding material
contractual provisions are required to make the statements in this registration statement not misleading. Additional information about the registrant may be found elsewhere in this registration statement and in the registrant’s other public
filings, which are available without charge through the SEC’s website at
http:
//
www.sec.gov
.
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Exhibit
No.
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Description
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3.1
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Amended and Restated Certificate of Incorporation of the Registrant, filed as an exhibit to Registrant’s Annual Report on Form 10-K, filed on March 28, 2007 and incorporated herein by reference.
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3.2
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Amended and Restated Bylaws of the Registrant, filed as an exhibit to Registrant’s Current Report on Form 8-K, filed on February 16, 2007 and incorporated herein by reference.
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3.3
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant, filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q, filed on August 9, 2013.
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4.1
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Specimen Common Stock Certificate of the Registrant, filed as an exhibit to Registrant’s Registration Statement on Form S-1, as amended, originally filed on August 16, 2006 and incorporated herein by reference.
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4.2
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Stock Purchase Agreement, dated October 26, 2012, entered into by and between the Registrant and Intuitive Surgical Operations, Inc., filed as an exhibit to Registrant’s Annual Report on Form 10-K filed on March 18, 2013 and
incorporated herein by reference.
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5.1
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Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, regarding legality of the common stock being registered.
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23.1
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Consent of Deloitte & Touche LLP, independent registered public accounting firm.
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23.2
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Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP is contained in Exhibit 5.1.
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24.1
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Powers of Attorney (included on signature page hereto).
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II-4
Hansen Medical, Inc. (MM) (NASDAQ:HNSN)
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