EMPLOYMENT AGREEMENT
Exhibit 10.12
EXECUTION VERSION
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made effective as of May 15, 2006 (the “Effective
Date”), by and between Xxxxxx X. Xxxxx (“Employee”) and MAKO Surgical Corp. (“Company”).
1. Employment
On the terms and conditions set forth in this Agreement, the Company hereby employs the
Employee as its Vice President of Sales and Marketing for a two (2) year consecutive 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 two (2) 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 by the Chief Executive Officer of the Company) 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 adversely affect the interest of the Company or run afoul of covenants contained in this
Agreement. Notwithstanding the foregoing, Employee may serve on other boards of directors, with
the prior approval of the Company’s Chief Executive Officer.
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 sales and marketing and responsibility for the day-to-day business and affairs
described in Schedule 1 hereto (the “Job Responsibilities”).
The Employee will perform his duties and responsibilities under this Agreement based out of
the a combination of his home office and the offices of the Company located in Hollywood, Florida
for a six (6) month period beginning on the Effective Date (the “Relocation Period”). Upon
expiration of the Relocation Period, 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.
2. Compensation
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. Base Salary:
The Employee shall receive an annual base salary (as increased from time to time, “Base
Salary”) at the rate of $160,000. 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 of Directors of the Company (the
“Board”).
b. Performance Bonus:
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 sixty (60) days
following the period for which the bonus is awarded.
c. Equity:
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 2004 Stock Incentive Plan (the “Option
Plan”), 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 of
ISOs at the end of calendar year 2006 as approved by the Board, entitling Employee to purchase
fifty thousand (50,000) shares of the Company’s Common Stock (the “Second Option Award”), and shall
be eligible for additional option awards as determined by the Board. The purchase price per share
for any option award will be the fair market value of such
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Common Stock at the time of such equity award. For the Initial Option Award, the per share
purchase price shall be $0.42. 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) between the Company and Employee, consistent with the MAKO 2004 Stock Incentive 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.
d. Benefits:
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).
e. Relocation:
The Company shall reimburse Employee for moving expenses in a total amount not to exceed
$20,000.00 Such reimbursement for moving expenses shall be made pursuant to the Company’s expense
reimbursement policy, a copy of which has been provided to Employee. The Company shall provide the
Employee with a relocation bonus to cover the costs of temporary housing and travel expenses during
the Relocation Period in an amount not to exceed $15,000.00, gross of deductions for applicable
payroll taxes (the “Relocation Bonus” and together with
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reimbursement for moving expenses, the “Relocation Payments”). Employee agrees and
acknowledges that if within twenty-four (24) months of the date of this Agreement Employee’s
employment with the Company terminates for any reason except by the Company without Cause (as
defined in Section 3(e) of this Agreement) or by Employee with Good Reason (as defined in Section
3(d) of this Agreement), he shall repay a prorated share of the Relocation Payments based on a
twenty-four (24) month proration formula.
f. Insurance:
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. At all times the Company shall maintain at least $2,000,000
of D&O coverage with a retention amount of no more than $50,000. The Company hereby indemnifies
Employee and agrees 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. The Company
agrees to pay to the Employee in advance of the final disposition of any proceeding all such
amounts incurred or suffered.
3. Termination
a. At the Expiration of the Term
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. Automatic Termination Due To Death or Disability
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. Termination by the Company Without Cause
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.
d. Termination by the Employee
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) relocation of the Company’s Hollywood, Florida
office to a location more than one hundred (100) miles from its location at the time this Agreement
is executed.
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,
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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.
e. Termination by the Company for Cause
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
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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.
4. Discoveries and Works
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.
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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.
5. Confidentiality and Noncompetition Covenants
a. Confidentiality
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
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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,
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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.
b. Noncompetition
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 minimally invasive knee replacement surgery in
combination with surgical navigation and robotics. 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, for the purpose of promoting a product or service competitive
to any product or service of the Company to any customer, client or employee of the Company, its
subsidiaries or any of its respective businesses.
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6. Reliance
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.
7. Equitable Relief and Enforcement
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
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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.
8. Miscellaneous
a. Entire Agreement; Amendment; Waivers; Headings
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. Counterparts
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.
c. Notices
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 their respective addresses set forth below:
| (i) | Xxxxxx X. Xxxxx 00 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx, XX 00000 |
|||
| (ii) | MAKO Surgical Corp. Attn: Chief Financial Officer 0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx 00000 |
d. Successors and Assigns
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
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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.
e. Applicable Law; Arbitration as Exclusive Remedy
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.
* * * * *
[Signature Page Follows]
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IN WITNESS WHEREOF, THE PARTIES TO THIS Agreement have placed their hands as of the day and
year first above written.
By:
|
/s/ Xxxxxx X. Xxxxx | Dated: | 4/25/06 | |||
| Name: Xxxxxx X. Xxxxx | ||||||
| MAKO SURGICAL CORP. | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxx | Dated: | 4/25/06 | |||
| Xx. Xxxxxxx X. Xxxxx | ||||||
| President & Chief Executive Officer | ||||||
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