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Filed Pursuant to Rule 424(b)(3)
Registration No. 333-209486

PROSPECTUS

 

15,543,413 shares of Common Stock

 

 

This prospectus relates to the offer and sale, from time to time, of up to 15,543,413 shares of our common stock, par value $0.001 per share, held by SOFAR S.p.A., or SOFAR, who received such shares as part of the consideration paid by us for the acquisition of the ALF-X Surgical Robotic System.

The shares of common stock registered for the account of SOFAR may be sold from time to time by SOFAR, subject to the provisions of a lock-up agreement described herein, directly or through one or more broker-dealers, in one or more transactions on the NYSE MKT, in the over-the-counter market, in negotiated transactions or otherwise, at prices related to the prevailing market prices or at negotiated prices, all as more fully described in the section entitled “Plan of Distribution” beginning on page 7 of this prospectus. We will not receive any proceeds from the sale of these shares of common stock offered by SOFAR. All costs and expenses incurred in connection with the registration under the Securities Act of 1933, as amended, or Securities Act, of the offering made hereby will be paid by us, other than any brokerage fees and commissions, fees and disbursements of legal counsel for SOFAR and stock transfer and other taxes attributable to the sale of the shares, which will be paid by SOFAR.

We are registering the offer and sale of these shares pursuant to certain registration rights granted to SOFAR. The registration of these shares of common stock does not necessarily mean that any of the shares will be offered or sold by SOFAR.

Our common stock is traded on the NYSE MKT under the symbol “TRXC.” On March 9, 2016, the closing price of our common stock was $4.36 per share.

 

 

Investing in our securities involves a high degree of risk. See “RISK FACTORS” on page 5.

 

 

Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

 

 

The date of this Prospectus is March 11, 2016.

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TABLE OF CONTENTS

 

		Page
PROSPECTUS SUMMARY			1
ABOUT THIS PROSPECTUS			5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS			5
RISK FACTORS			5
USE OF PROCEEDS			6
SELLING STOCKHOLDER			6
PLAN OF DISTRIBUTION			7
DESCRIPTION OF CAPITAL STOCK			9
LEGAL MATTERS			11
EXPERTS			11
INCORPORATION BY REFERENCE			11
WHERE YOU CAN FIND MORE INFORMATION			12

You should rely only on the information contained in this prospectus and in any prospectus supplement (including in any documents incorporated by reference herein or therein). We have not, and SOFAR has not, authorized anyone to provide you with any different information. SOFAR is offering to sell our securities, and seeking offers to buy, only in jurisdictions where offers and sales are permitted.

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ABOUT THIS PROSPECTUS

This prospectus is part of a resale registration statement that we filed with the U.S. Securities and Exchange Commission, or SEC. By using a resale registration statement, SOFAR may, from time to time, offer and sell up to an aggregate of 15,543,413 shares of our common stock in one or more offerings. We will not receive any of the proceeds from the sales. We may add, update or change in a prospectus supplement any of the information contained in this prospectus or the documents incorporated by reference.

This prospectus provides you with a general description of the Company and our securities. For further information about our business and our securities, you should refer to the registration statement and the reports incorporated by reference in this prospectus, as described in “Where You Can Find More Information.”

You should rely only on the information contained in this prospectus and in any prospectus supplement (including in any documents incorporated by reference herein or therein). We and SOFAR have not authorized anyone to provide you with any different information. SOFAR is offering to sell our securities, and seeking offers to buy, only in jurisdictions where offers and sales are permitted.

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended (the Exchange Act). All statements, other than statements of historical fact, included or incorporated in this prospectus regarding our strategy, future operations, collaborations, intellectual property, cash resources, financial position, future revenues, projected costs, prospects, plans, and objectives of management are forward-looking statements. The words “believes,” “anticipates,” “estimates,” “plans,” “expects,” “intends,” “may,” “could,” “should,” “potential,” “likely,” “projects,” “continue,” “will,” and “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. We cannot guarantee that we actually will achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements. There are a number of important factors that could cause our actual results to differ materially from those indicated or implied by forward-looking statements. These important factors include those referenced below under the heading “Risk Factors.” These factors and the other cautionary statements made in this prospectus should be read as being applicable to all related forward-looking statements whenever they appear in this prospectus. In addition, any forward-looking statements represent our estimates only as of the date that this prospectus is filed with the SEC, and should not be relied upon as representing our estimates as of any subsequent date. We do not assume any obligation to update any forward-looking statements. We disclaim any intention or obligation to update or revise any forward-looking statement, whether as a result of new information, future events or otherwise.

RISK FACTORS

Investing in our securities involves substantial risks. In addition to other information contained in this prospectus and any accompanying prospectus supplement, before investing in our securities, you should carefully consider the risks described under the heading “Risk Factors” in our Annual Report on Form 10-K, as it may be amended, and in any other documents incorporated by reference into this prospectus, as updated by our future filings. These risks are not the only ones faced by us. Additional risks not known or that are deemed immaterial could also materially and adversely affect our financial condition, results of operations, our products, business and prospects. Any of these risks might cause you to lose all or a part of your investment.

 

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USE OF PROCEEDS

We are registering the shares of common stock for resale by SOFAR. We will not receive any proceeds from the sale of common stock by SOFAR.

SELLING STOCKHOLDER

As described in the prospectus summary, SOFAR acquired shares of our common stock in the ALF-X Acquisition. SOFAR is also a party to the Registration Rights Agreement and the Lock-Up Agreement we entered into in September 2015. We are registering these shares in accordance with the registration rights provided under the Registration Rights Agreement. The Lock-Up Agreement provides that SOFAR may sell, transfer or convey: (i) no more than 50% of the shares between September 22, 2016 and March 21, 2017; and (ii) no more than 75% of the shares between March 22, 2017 and September 21, 2017. The restrictions on transfer contained in the Lock-Up Agreement cease to apply to all of the shares registered on this prospectus on September 22, 2017. The restrictions on transfer contained in the Lock-Up Agreement immediately terminate upon (x) the announcement by any third party of an offer to acquire at least 51% of the issued and outstanding shares of the Company’s common stock; (y) the entry by the Company into an agreement for the sale of at least 51% of the Company’s common stock or assets to, or the merger or consolidation with, a third party; or (z) if one of the Second Tranche or Third Tranche of the purchase price of the ALF-X Acquisition has not yet been paid to SOFAR, the date on which there is a decrease in the trading price of the Company’s common stock to a closing price below $1.50 per share for at least 30 consecutive trading days.

The following table sets forth information as of February 1, 2016 and includes the number of shares of our common stock beneficially owned by SOFAR prior to the offering, the number of shares of common stock offered by SOFAR, and the number of shares of common stock that will be owned by SOFAR upon completion of the offering or offerings pursuant to this prospectus, assuming SOFAR sells all of the shares of common stock offered hereby. Only SOFAR or its permitted transferees, pledgees, donees, assignees, distributees, successors and others who later come to hold any of SOFAR’s interest may offer and sell the common stock pursuant to this prospectus and any accompanying prospectus supplement. SOFAR may offer the shares listed in the table below for sale pursuant to this prospectus and any accompanying prospectus supplement from time to time. Accordingly, no estimate can be given as to the shares of common stock that SOFAR will hold upon consummation of any such sales. Beneficial ownership is determined in accordance with the rules of the SEC. There are no material relationships between SOFAR and us other than as disclosed below.

 

Beneficial Ownership Prior to this Offering

Shares Being

Beneficial Ownership After this Offering

Name of Selling Stockholder

Number

Percent

Offered

Number

Percent

SOFAR, S.p.A.

15,543,413(1)

15.5%

15,543,413

0

*

 

*	Holds less than one percent (1%).

(1)

The shares were acquired on September 21, 2015 in connection with the Company’s acquisition from SOFAR of all of the assets, employees and contracts related to the ALF-X Acquisition, as further described above under “Prospectus Summary.” Mr. Andrea Biffi, the chief executive officer, and a member of the board of directors, of SOFAR, was elected to the Board of Directors of the Company in connection with the ALF-X Acquisition.

 

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PLAN OF DISTRIBUTION

SOFAR and any transferees, pledgees, donees, assignees, distributees or other successors in interest to SOFAR may, from time to time, sell, transfer or otherwise dispose of any or all of their shares of our common stock covered by this prospectus on the NYSE MKT or any other 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. SOFAR may use any one or more of the following methods when disposing of shares:

 

•

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

 

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block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

 

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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

 

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an exchange distribution in accordance with the rules of the applicable exchange;

 

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privately negotiated transactions;

 

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settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part;

 

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broker-dealers may agree with SOFAR to sell a specified number of such shares at a stipulated price per share;

 

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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;

 

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a combination of any such methods of sale; or

 

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any other method permitted pursuant to applicable law (including underwritten transactions).

SOFAR may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.

SOFAR has informed us it does not have any agreement or understanding, directly or indirectly, with any person to distribute the shares covered under this prospectus. If SOFAR notifies us that a material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, secondary distribution or a purchase by a broker or dealer, we may be required to file a prospectus supplement pursuant to the applicable rules promulgated under the Securities Act.

Broker-dealers, underwriters and agents engaged by SOFAR may arrange for other broker-dealers, underwriters or agents to participate in sales. Broker-dealers, underwriters or agents may receive commissions, discounts or concessions from SOFAR (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA rules.

 

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In connection with the sale of the common stock or interests therein, SOFAR may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. SOFAR may also sell shares of the common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. SOFAR may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).

SOFAR and any broker-dealers, underwriters or agents that are involved in selling the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers, underwriters or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. If SOFAR qualifies as an “underwriter,” it will be subject to the prospectus delivery requirements of Section 5(b)(2) of the Securities Act.

All costs and expenses incurred in connection with the registration under the Securities Act of the offering made hereby will be paid by us, other than any brokerage fees and commissions, fees and disbursements of legal counsel for SOFAR and stock transfer and other taxes attributable to the sale of the shares, which will be paid by SOFAR.

In connection with the ALF-X Acquisition, SOFAR entered into the Lock-Up Agreement, pursuant to which SOFAR has agreed not to sell shares of our common stock for a fixed period of time following the closing of the ALF-X Acquisition. The Lock-Up Agreement prohibits all sales of securities by SOFAR (including sales of the securities offered by this prospectus) prior to September 22, 2016, after which SOFAR is entitled to sell up to 50% of the securities subject to the Lock-Up Agreement. Beginning on March 22, 2017, SOFAR is entitled to sell up to 75% of the securities subject to the Lock-Up Agreement and the Lock-Up Agreement terminates on September 22, 2017, at which point all of the securities subject to the Lock-Up Agreement will be eligible for sale. The restrictions on transfer contained in the Lock-Up Agreement immediately terminate upon (x) the announcement by any third party of an offer to acquire at least 51% of the issued and outstanding shares of the Company’s common stock; (y) the entry by the Company into an agreement for the sale of at least 51% of the Company’s common stock or assets to, or the merger or consolidation with, a third party; or (z) if one of the Second Tranche or Third Tranche of the purchase price of the ALF-X Acquisition has not yet been paid to SOFAR, the date on which there is a decrease in the trading price of the Company’s common stock to a closing price below $1.50 per share for at least 30 consecutive trading days. As of the date of this prospectus, all of the shares of common stock to be resold by SOFAR pursuant to this prospectus remain subject to the restriction on sale contained in the Lock-Up Agreement.

Because SOFAR may be deemed to be an “underwriter” within the meaning of the Securities Act, it will be subject to the prospectus delivery requirements of the Securities Act including Rule 172 thereunder. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus.

To the extent required, the shares of our common stock to be sold; the name of a selling stockholder; the respective purchase prices and public offering prices; the names of any agents, dealers or underwriters; and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus. The resale shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale 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.

 

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Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, SOFAR will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of shares of our common stock by SOFAR or any other person. We will make copies of this prospectus available to SOFAR and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).

DESCRIPTION OF CAPITAL STOCK

Our authorized capital stock consists of 750,000,000 shares of common stock, par value $0.001 per share, and 25,000,000 shares of preferred stock, par value $0.01 per share.

Common Stock

Of the authorized common stock, as of February 1, 2016, there are 100,149,453 shares outstanding and, as of December 31, 2015, there are 6,795,815 shares of our common stock reserved for the exercise of outstanding stock options, warrants and restricted stock units. There were approximately 250 record holders as of February 1, 2016. Subject to the prior rights of the holders of any shares of preferred stock which may be issued in the future, the holders of our common stock are entitled to receive dividends from our funds legally available therefor when, as and if declared by our Board of Directors, and are entitled to share ratably in all of our assets available for distribution to holders of our common stock upon the liquidation, dissolution or winding-up of our affairs, subject to the liquidation preference, if any, of any then outstanding shares of preferred stock. Holders of our common stock do not have any preemptive, subscription, redemption or conversion rights. Holders of our common stock are entitled to one vote per share on all matters which they are entitled to vote upon at meetings of stockholders or upon actions taken by written consent pursuant to Delaware corporate law. The holders of our common stock do not have cumulative voting rights, which mean that the holders of a plurality of the outstanding shares can elect all of our directors. All of the shares of our common stock currently issued and outstanding are fully-paid and nonassessable. No dividends have been paid to holders of our common stock since our incorporation, and no cash dividends are anticipated to be declared or paid in the reasonably foreseeable future.

Transfer Agent.

The transfer agent for our common stock is Continental Stock & Transfer Company.

Listing.

The shares of our common stock are currently listed on the NYSE MKT under the symbol “TRXC.”

Preferred Stock

Our Board has the authority, without further action by the holders of the outstanding common stock, to issue preferred stock from time to time in one or more classes or series, to fix the number of shares constituting any class or series and the stated value thereof, if different from the par value, as to fix the terms of any such series or class, including dividend rights, dividend rates, conversion or exchange rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price and the liquidation preference of such class or series.

 

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Anti-Takeover Effects of Certain Provisions of our Certificate of Incorporation, our By-Laws and Delaware Law

Delaware Statute

We are subject to Section 203 of the Delaware General Corporation Law, which prohibits a publicly held 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 such date, our board of directors approves either the business combination or the transaction that resulted in the stockholder’s becoming an interested stockholder;

 

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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owns at least 85% of our outstanding voting stock, excluding shares held by directors, officers and certain employee stock plans; or

 

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on or after the consummation date, the business combination is approved by our board of directors and by the affirmative vote at an annual or special meeting of stockholders holding at least two-thirds of our outstanding voting stock that is not owned by the interested stockholder.

For purposes of Section 203, a “business combination” includes, among other things, a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and an “interested stockholder” is generally a person who, together with affiliates and associates of such person:

 

•

owns 15% or more of outstanding voting stock; or

 

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is an affiliate or associate of ours and was the owner of 15% or more of our outstanding voting stock at any time within the prior three years.

Certificate of Incorporation and Bylaw Provisions

Our amended and restated certificate of incorporation and amended and restated bylaws include provisions that, among others, could have the effect of delaying, deferring or discouraging potential acquisition proposals and could delay or prevent a change of control of us. The provisions in our certificate of incorporation and bylaws that may have such effect include:

 

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Preferred Stock. As noted above, our board of directors, without stockholder approval, has the authority under our certificate of incorporation to issue preferred stock with rights superior to the rights of the holders of common stock. As a result, we could issue preferred stock quickly and easily, which could adversely affect the rights of holders of our common stock and could be issued with terms calculated to delay or prevent a change of control or make removal of management more difficult.

 

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Stockholder Meetings. Under our certificate of incorporation, as amended, and bylaws, special meetings of our stockholders may be called only by the vote of a majority of the entire Board of Directors or the chairman of the Board of Directors. Our stockholders may not call a special meeting of the stockholders.

 

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•

Requirements for Advance Notification of Stockholder Nominations and Proposals. Our bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of our Board of Directors or a committee thereof.

LEGAL MATTERS

Certain legal matters with respect to the securities offered hereby have been passed upon by Ballard Spahr LLP.

EXPERTS

The consolidated financial statements as of December 31, 2015 and 2014 and for each of the three years in the period ended December 31, 2015 and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2015 incorporated by reference in this prospectus have been so incorporated in reliance on the reports of BDO USA, LLP, an independent registered public accounting firm, (the report on the consolidated financial statements contains an explanatory paragraph regarding the Company’s ability to continue as a going concern) incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.

The carve-out financial statements of ALF-X System (a carve-out of SOFAR S.p.A.) as of December 31, 2014 and 2013 and for the two years in the period ended December 31, 2014 incorporated by reference in this prospectus have been so incorporated in reliance on the report of BDO S.p.A., an independent auditor, incorporated herein by reference, given on the authority of said firm as experts in auditing and accounting.

INCORPORATION BY REFERENCE

The SEC allows us to “incorporate by reference” in this prospectus the information in other documents that we file with it, which means that we can disclose important information to you by referring you to those documents containing such information. This prospectus is part of a registration statement we filed with the SEC. You should rely on the information incorporated by reference in this prospectus and the registration statement. The information incorporated by reference is considered to be part of this prospectus and information we file later with the SEC will automatically update and supersede this information and information contained in documents filed earlier with the SEC. We incorporate by reference the documents listed below and any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering; provided, that we are not incorporating by reference any documents or information deemed to have been furnished and not filed in accordance with SEC rules. The documents we are incorporating by reference are:

 

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our Annual Report on Form 10-K for the year ended December 31, 2015, filed on March 3, 2016;

 

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our Current Reports on Form 8-K filed on February 9, 2016 (Items 1.01, 8.01 and 9.01), on February 10, 2016 (Items 8.01 and 9.01) and on February 11, 2016 (Items 8.01 and 9.01) and our Current Report on Form 8-K/A filed on December 4, 2015 (Item 9.01); and

 

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the description of our common stock contained in the Registration Statement on Form 8-A filed on April 7, 2014 and any amendments to such Registration Statement filed subsequently thereto, including all amendments or reports filed for the purpose of updating such description.

We will furnish to you, on written or oral request, a copy of any or all of the documents that have been incorporated by reference, including exhibits to these documents. You may request a copy of these filings at no cost by writing or telephoning our Secretary at the following address and telephone number:

TransEnterix, Inc.

Attention: Joshua Weingard, Chief Legal Officer and Secretary

635 Davis Drive, Suite 300

Morrisville, NC 27560

Telephone No.: (919) 765-8400

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-3 under the Securities Act to register our securities being offered in this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all the information set forth in the registration statement or the exhibits and schedules filed thereto. For further information about us and our securities offered by this prospectus, we refer you to the registration statement and the exhibits and schedules filed with the registration statement. Any statement contained in this prospectus regarding the contents of any contract or any other document that is filed as an exhibit to the registration statement is not necessarily complete and each such statement is qualified in all respects by reference to the full text of such contract or other document filed as an exhibit to the registration statement. You may read and copy any materials we file with the SEC, including the registration statement, at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549, on official business days during the hours of 10:00 a.m. to 3:00 p.m. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1 -800-SEC-0330. The SEC also maintains an Internet website that contains reports, proxy statements and other information about issuers, like us, that file electronically with the SEC. The address of that website is http://www.sec.gov. You may also inspect our SEC reports and other information at our website at www.transenterix.com. Information on or accessible through our website is not a part of this prospectus. We are subject to the information reporting requirements of the Exchange Act, and file reports, proxy statements and other information with the SEC. These reports, proxy statements and other information are available for inspection and copying at the public reference room and website of the SEC referred to above.

 

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