EMPLOYMENT AGREEMENT
EXHIBIT
10.1
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of April 27, 2009 (the
“Effective Date”), by and between Xxxx Xxxxxxx (“Employee”) and MAKO Surgical
Corp. (“Company”).
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1.
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Employment
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On the
terms and conditions set forth in this Agreement, the Company hereby employs the
Employee as its Senior Vice President of Strategic Marketing & Business
Development for a one (1) year period commencing effective as of the Effective
Date (in total, the “Term”). This Agreement is subject to renewal by
the mutual written agreement of the parties on terms and conditions mutually
agreed to by the parties at the time of renewal. In the event either
party does not intend to renew the Agreement following expiration of the initial
(1) year term, ninety (90) days written advance notice shall be given to the
other party (a “Notice of Non-Renewal”). If no such Notice of
Non-Renewal is given this Agreement shall automatically renew for one (1) year
terms. In the event of non-renewal by the Company, the Company shall, with
delivery of its Notice of Non-Renewal, provide Employee with written notice of
its election to either (a) pay Employee severance in accordance with Section
3(c) hereto in consideration for the non-competition covenants contained in
Section 5(b); or (b) waive the rights to enforcement of and release Employee
from obligations of the non-competition covenants contained in Section
5(b).
The
Employee hereby accepts such employment and agrees to perform the services and
duties required on an exclusive (except as agreed to in writing by Board of
Directors of the Company (the “Board”)) and full-time basis. Employee
hereby represents and warrants that he is under no contractual, legal, or other
impediment to performing the services required under this Agreement. Nothing
herein contained shall prohibit the Employee from investing or trading in
stocks, bonds, commodities, or other securities or forms of investment,
including real estate property, as long as such activities do not require an
unreasonable amount of time by the Employee, and do not otherwise conflict with
any policy of the Company, adversely affect the interest of the Company or run
afoul of covenants contained in this Agreement.
The
Employee further agrees that he will use his best efforts to perform his duties
hereunder to the best of his ability in accordance with Company policies, and in
a diligent, proper and workmanlike manner. In the performance of
Employee’s duties, he shall be subject to the direction, supervision and control
of the Company’s President and CEO. The Employee shall have
supervision and control over the day-to-day business and affairs as described in
a Job Description document on file with the Human Resources Department of
Company, as updated from time to time and acknowledged by Employee (the “Job
Responsibilities”). Employee will perform his duties and
responsibilities under this Agreement based out of the offices of the Company
located in South Florida and shall travel to such other locations as the Company
may reasonably direct.
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2.
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Compensation
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During
the term of employment under this Agreement, and as full compensation for all
the Employee's services rendered under this Agreement, the Employee shall
receive the following compensation and benefits:
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a.
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Base
Salary:
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The
Employee shall receive an annual base salary (as increased from time to time,
“Base Salary”) at the rate of $225,000. The Employee’s Base Salary
will be payable in installments consistent with the Company’s payroll schedule,
subject to usual and required employee payroll deductions, including, without
limitation, applicable taxes. Employee’s Base Salary shall be
increased on an annual basis in the sole discretion of the Board.
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b.
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Cash Bonus
Payments
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i.
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Signing
Bonus:
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The Employee will receive a one time
Gross Payment (as defined in Section 2(e)) of Thirty Thousand Dollars ($30,000)
(the “Signing Bonus”), net of applicable payroll taxes, divided into two (2)
equal payments of Fifteen Thousand Dollars, net of applicable payroll taxes, for
the first two (2) pay periods following the Effective Date. Employee expressly
agrees and acknowledges that if, within six (6) months of the Effective Date,
Employee’s employment with the Company terminates for any reason except Good
Reason (as defined in Section 3(d) of this Agreement), he shall repay a prorated
share of the Signing Bonus on a six (6) month proration formula.
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ii.
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Performance
Bonus:
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The
Employee’s performance cash bonus for any year under this Agreement shall be as
determined by the Board and calculated based on Employee’s performance (as an
individual and as part of the Company). The decision
about whether the necessary criteria have been met for a performance cash bonus
and whether to award such performance bonus shall be in the sole and absolute
discretion of the Board and is final. The bonus, should one be
awarded, shall be payable within ninety (90) days following the period for which
the bonus is awarded.
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c.
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Equity:
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On the
Effective Date of this Agreement, Employee shall receive an award of incentive
stock options (ISOs), issued pursuant and subject to the Company’s 2008 Omnibus
Incentive Plan (the “Option Plan,” a copy of which has been furnished to
Employee), entitling Employee to purchase one hundred thousand (100,000) shares
of the Company’s Common Stock (the “Initial Option Award”). Employee
is eligible to receive an additional award in the sole and absolute discretion
of the Board. The purchase price per share for any option award will
be the fair market value of such Common Stock at the time of such equity
award. The grant to Employee of and payment for the any option award
shall in each case be made pursuant and subject to the terms of an ISO Agreement
(with associated exhibits, a copy of which has been provided to Employee)
between the Company and Employee, consistent with the Option Plan. In
the event this Agreement is terminated for any reason by either the Company or
Employee, Employee shall not be entitled to, and therefore shall forfeit, any
unvested equity interest in the Company.
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d.
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Benefits:
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The
Employee shall be eligible for participation in the employee welfare benefit
plans, practices, policies and programs provided by the Company, including but
not limited to, health insurance and dental insurance, subject to the terms and
provisions of said benefit plans. The Employee shall also be entitled
to paid time off (PTO) as described in the Company’s Human Resource Policy
Manual, in effect from time to time. In addition, subject to approval
by the Company’s Chief Executive Officer, Employee shall be reimbursed for
reasonable expenses relating to Employee’s professional continuing education
requirements (if applicable) and professional licensing fees (if
applicable).
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e.
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Relocation:
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Employee has committed to spending an
average weekly minimum of three (3) days at the Company’s South Florida
headquarter or traveling on Company business until ultimately relocating to
South Florida (the “Relocation”), with an intention to do so within the one year
period following the Effective Date (the “Intended Relocation
Period”). The Company shall reimburse Employee for reasonable and
customary Relocation expenses, which are pre-approved by the Company’s Chief
Financial Officer, in a total amount not to exceed Twenty Thousand Dollars
($20,000) (the “Relocation Allowance”). Until the Relocation or
expiration of the Intended Relocation Period, whichever is sooner, the Company
shall provide Employee with a monthly Net Payment (as defined below) of up to
One Thousand Dollars ($1,000) for reimbursement of personal coach airfare
expenses to Trenton, New Jersey area, which shall not exceed Twelve Thousand
Dollars ($12,000) in the aggregate (the “Travel Allowance”). For the purposes of
this Agreement, “Net Payment” shall be a net cash payment after the deduction of
applicable payroll taxes. During the period commencing upon the Effective Date
and ending upon the earlier of (i) Employee’s purchase of a South Florida
residence (a “Residential Purchase”) and (ii) twelve (12) months thereafter, the
Company shall provide Employee with a monthly Net Payment of up to Three
Thousand Dollars ($3,000) for actual costs incurred for temporary housing in
South Florida (collectively, the “Housing Allowance”), provided however, that
Employee and Company shall meet every six (6) months during which temporary
housing payments are being made to review the progress of Employee’s relocation
efforts. Upon a Residential Purchase, the Company shall provide to
Employee a one time Gross Payment of up to Fifty Two Thousand Dollars ($52,000)
for reimbursement of Employee’s actual and customary closing costs, which are
pre-approved by the Company’s Chief Financial Officer (the “Closing
Allowance”). For the purposes of this Agreement, a “Gross Payment”
shall be a payment that shall be subject to applicable payroll taxes, through
the Company’s payroll withholding process. The parties agree that at
the Company’s sole discretion any of the payments described in this Section 2(e)
shall be billed directly to the Company. The parties further agree
that all Relocation and Residential Purchase items set forth in Schedule 1 hereto are
deemed to be reasonable and, therefore, approved (but each shall still require
pre-approval in regards to cost) and that Relocation and Residential Purchase
items not set forth in Schedule 1 are
presumed to be unreasonable and are therefore subject to pre-approval in regards
to both the nature and cost of such item. Notwithstanding the terms
and conditions set forth in this Section 2(e), Employee expressly agrees and
acknowledges that (i) the maximum aggregate Gross Payments (including the gross
amounts of the Net Payments) to be made by Company to Employee under all of the
Relocation Allowance, the Travel Allowance, the Housing Allowance and the
Closing Allowance shall be One Hundred Twenty Thousand Dollars ($120,000), and
(ii) if, within twenty-four (24) months of the date of this Agreement,
Employee’s employment with the Company terminates for any reason except Good
Reason (as defined in Section 3(d) of this Agreement), Employee shall repay a
prorated share of the payments described herein based on a twenty-four (24)
month proration formula.
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f.
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Insurance:
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The
Company shall provide industry standard Director’s and Officer’s (“D&O”)
Insurance during the term of this Agreement at its sole
expense. Employee, if an officer of the Company, shall be named as an
insured under the policy. The Company shall enter into an
indemnification agreement (a copy of which has been provided to Employee),
whereby Company shall indemnify Employee and agree to hold Employee harmless,
from all covered claims, demands, judgments, assessments, and costs, including
attorney or other professional fees, in excess of the amount of insurance
provided and/or which are incurred by application of the retention
amount.
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3.
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Termination
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a.
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At the Expiration of
the Term
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If the
Employee’s employment with the Company terminates at the end of the Term, the
Company shall have no further obligation to the Employee under this Agreement,
except for accrued and unpaid Base Salary and benefits the Employee has accrued
pursuant to any applicable welfare benefit plans provided by the Company, earned
but unpaid bonuses, and unreimbursed business-related expenses and unused
vacation time in accordance with Company policy.
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b.
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Automatic Termination
Due To Death or Disability
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If the
Employee dies or suffers any Disability (as such term is hereinafter defined)
his employment pursuant to this Agreement shall automatically terminate on the
date of his death or Disability, as the case may be. For purposes of this
Agreement, the term “Disability” shall mean the inability of the Employee to
perform his duties, with or without reasonable accommodations, under this
Agreement because of physical or mental illness or incapacity for a period of
ninety (90) days in any six (6) month period. For purposes of this Agreement,
the term “Date of Disability” shall be the 90th day of
such Disability.
In the
event of death of Employee, the Company shall have no further obligation under
this Agreement, except for (1) accrued (through the date of termination) and
unpaid Base Salary, (2) benefits the Employee has accrued pursuant to any
applicable welfare benefits plan, earned (through the date of termination) but
unpaid bonuses, and unreimbursed business-related expenses, in accordance with
Company policy and (3) payment for six (6) months of continued participation in
the Company’s health benefits for the Employee’s spouse/dependents. In the event
of Disability the Company shall have no further obligation to the Employee under
the Agreement, except for (a) accrued (through the date of termination) and
unpaid Base Salary, benefits the Employee has accrued pursuant to any applicable
welfare benefits plan, (b) earned (through the date of termination) but unpaid
bonuses, and unreimbursed business-related expenses and unused vacation time in
accordance with Company policy and (c) payment for six (6) months of continued
participation in the Company’s health benefits for the Employee and his
spouse/dependents. The Base Salary payment shall be at the rate in
effect at the time of death or Disability.
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c.
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Termination by the
Company Without Cause
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The
Company may terminate this Agreement at any time during the Term without Cause.
In the event of termination without Cause, the Company shall pay the Employee
six (6) months Base Salary at the rate in effect at the time, in monthly
installments and shall pay for continuation of health benefits for six (6)
months. The Employee shall also be paid for accrued (through the date
of termination) and unpaid Base Salary, and benefits which Employee accrued
pursuant to any applicable welfare benefits plan, earned (through the date of
termination) but unused vacation for that year, earned but unpaid bonuses, and
unreimbursed business-related expenses, in accordance with Company
policy.
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d.
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Termination by the
Employee
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The
Employee may terminate this Agreement at any time by providing the Company with
sixty (60) days advance written notice, or for Good Reason (as such term is
hereinafter defined) by providing the Company written notice. For the
purposes of this Agreement, “Good Reason” shall mean (i) a material adverse
change of Employee’s Job Responsibilities, (ii) a breach by the Company with
respect to (1) its compensation obligations under this Agreement which has not
been cured after thirty (30) days written notice by Employee, or (2) its Notice
of Non-Renewal, (iii) a decrease in Employee’s Base Salary not equally applied
(on a percentage basis) to all employees subject to an employment agreement with
the Company, or (iv) after Employee’s Relocation, the Company relocates its
South Florida offices to a location more than one hundred (100) miles from its
location at the time of Employee’s Relocation.
In the
event Employee terminates this Agreement for Good Reason, he shall be entitled
to severance in an amount equal to six (6) months Base Salary at the rate in
effect at the time, paid in monthly installments, and payment of health
continuation benefits for six (6) months. In addition, Employee shall
be paid accrued (through the date of termination) and unpaid Base Salary and
benefits which Employee accrued pursuant to any applicable welfare benefits
plan, earned (through the date of termination) but unpaid bonuses, and
unreimbursed business-related expenses and unused vacation time in accordance
with Company policy.
In the
event Employee terminates this Agreement without Good Reason, the Employee shall
only be entitled to payment for accrued (through the date of termination) and
unpaid Base Salary and benefits which Employee accrued pursuant to any
applicable welfare benefit plan, earned (through the date of termination) but
unpaid bonuses, and unreimbursed business-related expenses, in accordance with
Company policy.
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e.
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Termination by the
Company for Cause
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The
Company shall have the right to immediately terminate the employment of the
Employee for Cause (as such term is hereinafter defined), if such termination is
approved by not less than two-thirds of the Board at a meeting of the Board
called and held for such purpose, provided the Employee is given at least five
(5) days advance notice of such meeting and is given the opportunity to speak at
such meeting. For purposes of this Agreement, “Cause” shall mean any act or any
failure to act on the part of the Employee which constitutes: (i) the willful,
knowing or grossly negligent failure or
refusal of the Employee to perform his duties under this Agreement or to follow
the reasonable directions of the Company’s Chief Executive Officer which has
continued for thirty (30) days following written notice of such failure or
refusal from the Board; (ii) a breach by the Employee of any fiduciary duty to
the Company or any of the Company’s subsidiaries for which the Employee is
required to perform services under this Agreement; (iii) material and willful
misfeasance or malfeasance by the Employee in connection with the performance of
his duties under this Agreement; (iv) Employee’s commission of an act which is a
fraud or embezzlement; (v) the conviction of the Employee for, or a plea of
guilty or nolo
contendere to a
criminal act which is a felony; (vi) a material breach or default by the
Employee of any provision of this Agreement which has continued for thirty (30)
days following notice of such breach or default from the Board; (vii) the
Employee’s willful and material breach or violation of any law, rule, regulation
(other than traffic violations or similar offenses); (viii) abuse of drugs or
alcohol to the detriment of the Company; or (ix) the Employee not maintaining
his primary residence in the South Florida region.
In the
event the Employee is terminated for Cause, the Employee shall only be entitled
to payment for accrued (through the date of termination) and unpaid Base Salary
and benefits which Employee accrued pursuant to any applicable welfare benefits
plan, earned (through the date of termination) but unpaid bonuses, and
unreimbursed business-related expenses, in accordance with Company
policy.
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4.
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Discoveries and
Works
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The
Employee understands and agrees that any and all Confidential Information (as
hereinafter defined) of the Company which he has access to, uses or creates
during his employment with the Company is and shall at all times remain the sole
and exclusive property of the Company, and the Employee further agrees to assign
to the Company any right, title or interest he may have in such Confidential
Information to the Company. The Employee also agrees that, if he is asked by the
Company (at its expense), he will do all things and sign all necessary documents
reasonably necessary in the opinion of the Company to eliminate any ambiguity as
to the right of the Company in such Confidential Information including but not
limited to providing his full cooperation to the Company in the event of any
litigation to protect, establish or obtain such rights of the
Company.
The
Employee understands that this Section 4 does not waive or transfer his rights
to any invention for which no equipment, supplies, facility or trade secret or
Confidential Information of the Company was used and which was developed
entirely on his own time, unless the invention relates to the business of the
Company, or to the Company's actual demonstratively anticipated research or
development, or the invention results from any work that he performed for the
Company during the term of his employment relationship with the
Company.
The
Employee hereby assigns and transfers to the Company, its successors, legal
representatives and assigns, his entire right, title, and interest in and to any
and all present and future works of authorship, inventions, know-how,
confidential information, proprietary information, or trade secrets resulting
from work done by him on behalf of the Company (collectively, the “Intellectual
Property”). The Employee agrees to waive all moral rights relating to
the Intellectual Property developed or produced, including without limitation
any and all rights of identification of authorship, any and all rights of
approval, restriction or limitation on use or subsequent modifications and any
and all rights to prevent any changes prejudicial to his honor or
reputation. The Employee further agrees to provide all assistance
reasonably requested by the Company in the establishment, preservation and
enforcement of its rights in the Intellectual Property, such assistance to be
provided at the Company’s expense, but without any additional compensation to
the Employee.
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5.
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Confidentiality and
Noncompetition Covenants
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a.
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Confidentiality
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The
Employee acknowledges that, during the course of his employment with the
Company, the Employee may receive special training and/or may be given access to
or may become acquainted with Confidential Information (as hereinafter defined)
of the Company. As used in this Section 5, "Confidential Information" of the
Company means all Intellectual Property Rights not available in the public
domain, trade practices, business plans, price lists, supplier lists, customer
lists, marketing plans, financial information, software and all other
compilations of information which relate to the business of the Company, or to
any of its subsidiaries, and which have not been disclosed by the Company to the
public, or which are not otherwise generally available to the
public.
The
Employee acknowledges that the Confidential Information of the Company, as such
may exist from time to time, are valuable, confidential, special and unique
assets of the Company and its subsidiaries, expensive to produce and maintain
and essential for the profitable operation of their respective businesses. The
Employee agrees that, during the course of his employment with the Company, or
at any time thereafter, he shall not, directly or indirectly, communicate,
disclose or divulge to any Person (as such term is hereinafter defined), or use
for his benefit or the benefit of any Person, in any manner, any Confidential
Information of the Company or its subsidiaries acquired during his employment
with the Company or any other confidential information concerning the conduct
and details of the businesses of the Company and its subsidiaries, except as
required in the course of his employment with the Company or as otherwise may be
required by law. For purposes if this Agreement, “Person” shall mean any
individual, partnership, corporation, trust, unincorporated association, joint
venture, limited liability company or other entity or any government,
governmental agency or political subdivision.
All
documents relating to the businesses of the Company and its affiliates
including, without limitation, Confidential Information of the Company, whether
prepared by the Employee or otherwise coming into the Employee's possession, are
the exclusive property of the Company and such respective subsidiaries, and must
not be removed from the premises of the Company, except as required in the
course of the Employee's employment with the Company. The Employee shall return
all such documents (including any copies thereof) to the Company when the
Employee ceases to be employed by the Company or upon the earlier request of the
Company or the Board.
The
Employee agrees not to disclose the terms of this Agreement to any other
non-officer employee of the Company without the consent of the Chief Executive
Officer.
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b.
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Noncompetition
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During
the Term of this Agreement (including any extensions thereof) and for a period
of one (1) year following the termination of the Employee's employment under
this Agreement for any reason, the Employee shall not, except with the Company's
express prior written consent, directly or indirectly, in any capacity, for the
benefit of any entity or person (including the Employee):
(i) Become
employed by, own, operate, manage, direct, invest in (except investment through
a mutual fund or ownership of less than 1% of the securities of a public company
in competition with the Business), or otherwise, directly or indirectly, engage
in, or be employed by, any entity or person which competes with the Business (as
hereinafter defined) within the Territory. For purposes of this
Agreement, “Business” shall mean the development and/or manufacture, sale or
distribution to the orthopedics market of any image guided surgical device
and/or software used in combination with any surgical robotic device and/or
software. For purposes of this Agreement, “Territory” shall mean the
United States of America.
(ii) Solicit,
service, divert, take away, or contact any customer, client or employee of the
Company, or any of its subsidiaries, or promote a competing service to any
customer, client or employee of the Company, its subsidiaries or any of its
respective businesses.
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6.
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Reliance
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The
Employee acknowledges that his compliance with the provisions of Section 5 of
this Agreement (hereinafter referred to as the "Restrictive Covenants") is a
material part of the consideration bargained for by the Company under this
Agreement. The Employee agrees that such covenants are reasonable as to scope
and duration and agrees to be bound by the provisions of Section 5 of this
Agreement to the maximum extent permitted by law, it being the intent and spirit
of the parties to this Agreement that the provisions of Section 5 of this
Agreement shall be enforceable. However, the parties to this Agreement further
agree that if any portion of the Restrictive Covenants or their application is
construed to be invalid or unenforceable, then the other portions thereof and
their application shall not be affected thereby and shall be enforceable. If the
Restrictive Covenants shall for any reason be held to be excessively broad as to
duration, geographic scope, property, subject or similar factor, then the court
making such determination shall have the power to reduce or limit such duration,
geographic scope, property, subject or similar factors so as to be enforceable
to the maximum extent compatible with applicable law, and the Restrictive
Covenants shall then be enforceable in its reduced or limited form.
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7.
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Equitable Relief and
Enforcement
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The
Employee further acknowledges that any breach by him of the Restrictive
Covenants will result in irreparable injury to the Company and its affiliates
for which money damages could not adequately compensate the Company or such
affiliates. In the event of any such breach (or threatened breach), the Company
shall be entitled, in addition to all other rights and remedies which it may
have at law or in equity, to have an injunction issued by any competent court
enjoining and restraining the Employee and all other persons involved therein
from continuing such breach. The Company shall be entitled to such injunction
without necessity of posting any bond, but if a bond is nonetheless required by
the court entertaining the motion for the injunction, the parties to this
Agreement agree that a bond in the amount of US$1,000 is appropriate. The
existence of any claim or cause of action which the Employee or any such other
Person may have against the Company shall not constitute a defense or bar to the
enforcement of the Restrictive Covenants.
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8.
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Miscellaneous
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a.
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Entire Agreement;
Amendment; Waivers; Headings
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Except as
otherwise set forth herein, this Agreement constitutes the entire agreement
between the parties to this Agreement with respect to the subject matter of this
Agreement and supersedes all prior negotiations, understandings, agreements,
arrangements and understandings, both oral and written, between the parties to
this Agreement with respect to such subject matter. This Agreement
may not be amended or modified in any respect, except by the mutual written
agreement of the parties to this Agreement. The waiver by any of the parties to
this Agreement of any other party's prompt and complete performance, or breach
or violation, of any of the provisions of this Agreement shall not operate nor
be construed as a waiver of any subsequent breach or violation, and the waiver
by any of the parties to this Agreement to exercise any right or remedy which it
may possess under this Agreement shall not operate nor be construed as a bar to
the exercise of such right or remedy by such party upon the occurrence of any
subsequent breach violation. Descriptive headings contained in this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. Notwithstanding anything in
this Agreement to the contrary, the provisions of Sections 4, 5, 6 and 7 of this Agreement shall
survive the termination of the Employee's employment under this Agreement,
however caused, and the termination of this Agreement.
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b.
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Counterparts
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This
Agreement may be executed in any numbers of counterparts (including facsimile
copies thereof) and by the separate parties hereto in separate counterparts
(including facsimile copies thereof), each of which shall be deemed to be one
and the same instrument.
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c.
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Notices
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All
notices, requests, demands, instructions, consents or other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given if and when (a) delivered personally,
(b) transmitted by facsimile, prepaid telegram or telex, (c) mailed by first
class certified mail, return receipt requested, postage prepaid, or (d) sent by
an internationally recognized express courier service, postage or delivery
charges prepaid, to the parties at (i) for the Company, at 0000 Xxxxx Xxxx,
Attn: Chief Financial Officer, Ft. Xxxxxxxxxx, XX 00000 and (ii) for Employee,
at the address of record on file with the Company’s human resources department,
as provided by Employee from time to time.
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d.
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Successors and
Assigns
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No party
hereto shall have the right to assign this Agreement or any rights or
obligations hereunder without the consent of the other parties; provided, however that this
Agreement shall be assignable by the Company, in its sole discretion (a) upon a
sale or acquisition of the Company, or (b) to any affiliate of the Company,
without such consent and upon such assignment, shall inure to the benefit of,
and be binding upon, both the Employee and the person or entity purchasing such
assets, business or goodwill, or surviving such merger or resulting from such
consolidation, or the successor company, as the case may be, in the same manner
and to the same extent as though such other person or entity or the successor
company were the Company. Notwithstanding the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the parties to
this Agreement and their respective personal representatives, heirs, successors
and assigns.
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e.
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Applicable Law;
Arbitration as Exclusive
Remedy
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This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida without regard to conflict of laws principles. All
controversies or claims arising out of or relating to Paragraph 1 through 3 of
this Agreement shall be resolved by arbitration administered by the American
Arbitration Association under its National Rules for the Resolution of
Employment Disputes, except the parties agree the matter shall be handled by a
single arbitrator. The award rendered in any arbitration proceeding under this
section shall be final and binding. Judgment upon the award rendered
by the arbitrator(s) may be entered by a court of competent
jurisdiction. Any demand for arbitration must be made and filed
within one hundred and eighty (180) days of the date the requesting party knew
or reasonably should have known of the event giving rise to the controversy or
claim. Any claim or controversy not submitted to arbitration in
accordance with this section shall be considered waived, and, therefore, no
arbitration panel or tribunal or court shall have the power to rule or make any
award on such claims or controversy. The prevailing party in such
arbitration proceeding shall be entitled to recover reasonable expenses,
including attorney’s fees and costs.
f. Adherence to Legal,
Regulatory, Company and Ethical Requirements. Employee agrees and
covenants that he shall at all times conduct himself in full compliance with all
legal and ethical regulations and industry guidelines applicable to his position
with the Company, including, without limitation, all rules, regulations and
policies of the Company, the Securities & Exchange Commission (“SEC”) and
NASDAQ stock market, the Health Insurance Portability and Accountability Act of
1996 (42 U.S.C. 1320d-1329d-8; 42 U.S.C. 1320d-2) (“HIPAA”), the Foreign Corrupt
Practices Act (the “FCPA”) and Advanced Medical Technology Association
(“AdvaMed”) Code of Ethics on Interactions with Health Care
Professionals.
* * * * *
[Signature
Page Follows]
IN
WITNESS WHEREOF, THE PARTIES TO THIS Agreement have placed their hands as of the
day and year first above written.
By: /s/ Xxxx
Xxxxxxx
Dated: April 27,
2009
Name:
Xxxx
Xxxxxxx
By: /s/ Xxxxxxx X.
Xxxxx Dated: April 27,
2009
Xx.
Xxxxxxx X. Xxxxx
President
& Chief Executive Officer
Schedule
1
Relocation
Items
MAKO will
pay for some of the closing costs associated with purchasing your new
home. These may include:
|
·
|
Loan
origination fees, discount points or mortgage broker points up to
1%
|
|
·
|
Application
fee
|
|
·
|
Processing
fee
|
|
·
|
Normal
and customary attorneys’ fees
|
|
·
|
Appraisal
and/or survey of the new home, if required by the
lender
|
|
·
|
Inspections
|
|
·
|
Credit
report charges
|
|
·
|
Normal
and customary escrow or closing fees charged by the Title Company and/or
lender to close the sale (not including items such as taxes and insurance
that must be paid in advance into escrow
accounts)
|
|
·
|
Notary
fees
|
|
·
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Assumption
or transfer fees
|
|
·
|
Title
insurance or fees for examination of title (owner’s title not included
unless required by lender)
|
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·
|
Normal
and customary recording fees
|
|
·
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Documentary
stamps
|
|
·
|
Courier
fees
|
MAKO will
pay for certain reasonable miscellaneous expenses associated with your
relocation. These expenses may include:
|
·
|
Installation/connection
of phone, cable or internet
services
|
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·
|
Public
utility deposits
|
|
·
|
Driver’s
license and automobile registration
fees
|
