EX-10.1 Form of Indemnity Agreement



 





Exhibit 10.1




FORM OF




INDEMNIFICATION AGREEMENT




     This
Indemnification Agreement (this “Agreement”) is made as of the ___ day of ___,
200___ by and between MAKO Surgical Corp., a Delaware corporation, (the “Company”) and ___
(the “Indemnitee”).



     WHEREAS, the Board of Directors has determined that the increasing difficulty in attracting
and retaining qualified persons as directors and officers is detrimental to the best interests of
the Company’s stockholders and that the Company should act to assure such persons that there will
be adequate certainty of protection through insurance and indemnification against risks of claims
and actions against them arising out of their service to and activities on behalf of the Company;
and



     WHEREAS, Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”)
empowers the Company to indemnify and advance expenses to its officers, directors, employees and
agents by agreement and to indemnify and advance expenses to persons who serve, at the request of
the Company, as directors, officers, employees, or agents of other corporations or enterprises, and
expressly provides that the indemnification provided by Section 145 is not exclusive; and



     WHEREAS, the Company has adopted provisions in its Bylaws providing for mandatory
indemnification of its officers and directors to the fullest extent permitted by applicable law,
subject to certain limitations specified in the Bylaws, and the Company wishes to clarify and
enhance the rights and obligations of the Company and the Indemnitee with respect to
indemnification; and



     WHEREAS, in order to induce and encourage highly experienced and capable persons such as the
Indemnitee to serve and continue to serve as directors and officers of the Company and in other
capacities with respect to the Company and its affiliates, and to otherwise promote the desirable
end that such persons will resist what they consider unjustified lawsuits and claims made against
them in connection with the good faith performance of their duties to the Company, with the
knowledge that certain costs, judgments, liabilities and expenses incurred by them in their defense
of such litigation are to be borne by the Company, the Board of Directors of the Company has
determined that the following Agreement is reasonable and prudent to promote and ensure the best
interests of the Company and its stockholders; and



     NOW, THEREFORE, in consideration of the Indemnitee’s service as a director or executive
officer of the Company, or service at the Company’s request as a director, officer, employee, or
agent of other enterprises or entities, after the date hereof, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:



     Section 1. Service by Indemnitee. The Indemnitee will serve and/or continue to serve as
a director or officer of the Company faithfully and to the best of the Indemnitee’s ability so long
as the Indemnitee is duly elected or appointed and until such time as the Indemnitee is removed,
terminated or tenders a resignation.



 









 





     Section 2. Indemnification.



     (a) General. The Company shall indemnify the Indemnitee (i) as provided in this
Agreement and (ii) subject to the provisions of this Agreement, to the full extent permitted by
applicably law and in a manner permitted by such law.



     (b) Proceedings Other Than Proceedings by or in the Right of the Company. Except as
provided in Section 4 hereof, the Indemnitee shall be entitled to the rights of indemnification
provided in this Section 2(b) if, by reason of the Indemnitee’s Corporate Status (as hereinafter
defined), the Indemnitee is or was, or is or was threatened to be made, a party to or is or was
otherwise involved in a Proceeding (as hereinafter defined), other than a Proceeding by or in the
right of the Company to procure a judgment in its favor. The Indemnitee shall be indemnified
pursuant to and in accordance with this Section 2(b) against all Losses actually and reasonably
incurred by the Indemnitee or on the Indemnitee’s behalf in connection with such a Proceeding or
any claim, issue, or matter therein, but only if the Indemnitee acted in good faith and in a manner
that the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful.



     (c) Proceedings by or in the Right of the Company. Except as provided in Section 4
hereof, the Indemnitee shall be entitled to the rights of indemnification provided in this Section
2(c) if, by reason of the Indemnitee’s Corporate Status, the Indemnitee is or was, or is or was
threatened to be made, a party to or is or was otherwise involved in a Proceeding brought by or in
the right of the Company to procure a judgment in its favor. The Indemnitee shall be indemnified
pursuant to and in accordance with this Section 2(c) against all Expenses actually and reasonably
incurred by the Indemnitee or on the Indemnitee’s behalf in connection with such a Proceeding or
any claim, issue, or matter therein, but only if the Indemnitee acted in good faith and in a manner
that the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company; provided, however, that no indemnification for such Expenses shall be made in respect of
any claim, issue, or matter in such Proceeding as to which the Indemnitee shall have been adjudged
liable to the Company unless (and only to the extent that) the Court of Chancery of the State of
Delaware or the court in which such Proceeding was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of the case, the
Indemnitee is fairly and reasonably entitled to indemnity for such expenses that the Court of
Chancery or such other court shall deem proper. Anything in this Agreement to the contrary
notwithstanding, if the Indemnitee, by reason of the Indemnitee’s Corporate Status, is or was, or
is or was threatened to be made, a party to any Proceeding by or in the right of the Company to
procure a judgment in its favor, then the Company shall not indemnify the Indemnitee for any
judgment, fines, or amounts paid in settlement to the Company in connection with such Proceeding.



     (d) Indemnification for Expenses if Indemnitee is Wholly or Partly Successful. Anything
in this Agreement to the contrary notwithstanding, to the extent that the Indemnitee, by reason of
the Indemnitee’s Corporate Status, is or was, or is or was threatened to be made, a party to any
Proceeding and is successful, on the merits or otherwise, in defending such Proceeding (including
dismissal without prejudice), the Indemnitee shall be indemnified to the maximum extent permitted
by law against all Expenses actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s behalf in connection with the defense of such Proceeding. If the Indemnitee is not
wholly successful in defending any such Proceeding but is successful, on the merits or otherwise,
in defending one or more but less than all claims, issues, or matters in such



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proceeding (including dismissal without prejudice of certain claims), the Company shall indemnify
the Indemnitee against all Expenses actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s behalf in defending each such successfully resolved claim, issue, or matter. To the
extent the Indemnitee has been successful, on the merits or otherwise, in defending any Proceeding,
or in defending any claim, issue, or matter therein, the Indemnitee shall be entitled to
indemnification as provided in this Section 2(d) regardless of whether the Indemnitee met the
standards of conduct set forth in Sections 2(b) and 2(c) hereof.



     (e) Indemnification for Expenses as a Witness. Anything in this Agreement to the
contrary notwithstanding, to the fullest extent permitted by applicable law, to the extent that the
Indemnitee, by reason of the Indemnitee’s Corporate Status, is or was, or is or was threatened to
be made, a witness in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall
be indemnified against all Expenses actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s behalf in connection therewith. To the extent permitted by applicable law, the
Indemnitee shall be entitled to indemnification for Expenses incurred in connection with being or
threatened to be made a witness, as provided in this Section 2(e), regardless of whether the
Indemnitee met the standards of conduct set forth in Sections 2(b) and 2(c) hereof.



     (f) Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of the Losses actually and
reasonably incurred by the Indemnitee in a Proceeding, but not for the total amount thereof, the
Company shall indemnify the Indemnitee for the portion of such Losses to which the Indemnitee is
entitled.



     Section 3. Advancement of Expenses. Anything in this Agreement to the contrary
notwithstanding, but subject to Section 4 hereof, if, by reason of the Indemnitee’s Corporate
Status, the Indemnitee is or was, or is or was threatened to be made, a party to, or is or was
otherwise involved in, or is or was, or is or was threatened to be made, a witness to any
Proceeding (including, without limitation, a Proceeding brought by or in the right of the Company
to procure a judgment in its favor), then the Company shall advance all Expenses actually and
reasonably incurred by or on behalf of the Indemnitee in connection with any such Proceeding in
advance of the final disposition of such Proceeding within 20 days after the receipt by the Company
of a written request for such advance or advances from time to time. Such written request shall
include or be accompanied by a statement or statements reasonably evidencing the Expenses incurred
by or on behalf of the Indemnitee and for which advancement is requested, and shall include or be
preceded or accompanied by an undertaking by or on behalf of the Indemnitee to repay any Expenses
advanced if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified
against such Expenses under this Agreement or otherwise. Such undertaking shall be sufficient for
purposes of this Section 3 if it is in substantially the form attached hereto as Exhibit A. Any
advances and undertakings to repay pursuant to this Section 3 shall be unsecured and interest free.
The Indemnitee shall be entitled to advancement of Expenses as provided in this Section 3
regardless of any determination by or on behalf of the Company that the Indemnitee has not met the
standards of conduct set forth in Sections 2(b) and 2(c) hereof.



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     Section 4. Proceedings Against the Company. Anything in Section 2 or Section 3 hereof to
the contrary notwithstanding, except as provided in Section 7(d) hereof, with respect to a
Proceeding initiated against the Company by the Indemnitee (whether initiated by the Indemnitee
in or by reason of such person’s capacity as an officer or director of the Company or in or by
reason of any other capacity, including as an employee or agent of the Company or a director,
officer, employee, or agent of Another Enterprise), the Company shall not be required to indemnify
or to advance Expenses to the Indemnitee in connection with prosecuting such Proceeding (or any
part thereof) or in defending any counterclaim, cross-claim, affirmative defense, or like claim of
the Company in such Proceeding (or part thereof) unless such Proceeding was authorized by the Board
of Directors of the Company. For purposes of this Section 4, a compulsory counterclaim by the
Indemnitee against the Company in connection with a Proceeding initiated against the Indemnitee by
the Company shall not be considered a Proceeding (or part thereof) initiated against the Company by
the Indemnitee, and the Indemnitee shall have all rights of indemnification and advancement with
respect to any such compulsory counterclaim in accordance with and subject to the terms of this
Agreement.



     Section 5. Procedure for Determination of Entitlement to Indemnification; Independent
Counsel.



     (a) To obtain indemnification under this Agreement, the Indemnitee shall submit to the
Company a written request for indemnification, including therein or therewith, except to the extent
previously provided to the Company in connection with a request or requests for advancement
pursuant to Section 3 hereof, a statement or statements reasonably evidencing all Losses incurred
or paid by or on behalf of the Indemnitee and for which indemnification is requested. The Secretary
of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board
of Directors in writing that the Indemnitee has requested indemnification.



     (b) Upon written request by the Indemnitee for indemnification pursuant to the first
sentence of Section 5(a) hereof, if required by applicable law and to the extent not otherwise
provided pursuant to the terms of this Agreement, a determination with respect to the Indemnitee’s
entitlement to indemnification shall be made in the specific case as follows: (i) if a Change in
Control (as hereinafter defined) shall have occurred and if so requested in writing by the
Indemnitee, by Independent Counsel (as hereinafter defined) in a written opinion to the Board of
Directors; or (ii) if a Change in Control shall not have occurred (or if a Change in Control shall
have occurred but the Indemnitee shall not have requested that indemnification be determined by
Independent Counsel as provided in subpart (i) of this Section 5(b)), (A) by a majority vote of the
Disinterested Directors (as hereinafter defined), even though less than a quorum of the Board of
Directors, or (B) by a committee of Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum of the Board of Directors, (C) if there are
no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent
Counsel in a written opinion to the Board of Directors, or (D) by stockholders pursuant to
applicable law. Notice in writing of any determination as to the Indemnitee’s entitlement to
indemnification shall be delivered to the Indemnitee promptly after such determination is made, and
if such determination of entitlement to indemnification has been made by Independent Counsel in a
written opinion to the Board of Directors, then such notice shall be accompanied by a copy of such
written opinion. If it is determined that the Indemnitee is entitled to indemnification, then
payment to the Indemnitee of all amounts to which the Indemnitee is determined to be entitled shall
be made within 20 calendar days after such determination. If it is determined that the Indemnitee
is not entitled to indemnification, then the written notice to the Indemnitee (or, if such
determination has been made by Independent



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Counsel in a written opinion, the copy of such written opinion delivered to the Indemnitee) shall
disclose the basis upon which such determination is based. The Indemnitee shall cooperate with the
person, persons, or entity making the determination with respect to the Indemnitee’s entitlement to
indemnification, including providing to such person, persons, or entity upon reasonable advance
request any documentation or information that is not privileged or otherwise protected from
disclosure and that is reasonably available to the Indemnitee and reasonably necessary to determine
whether and to what extent the Indemnitee is entitled to indemnification.



     (c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 5(b) hereof, the Independent Counsel shall be selected as provided in
this Section 5(c). If a Change in Control shall not have occurred (or if a Change in Control shall
have occurred but the Indemnitee shall not have requested that indemnification be determined by
Independent Counsel as provided in subpart (i) of Section 5(b)), the Independent Counsel shall be
selected by the Board of Directors, and the Company shall give written notice to the Indemnitee
advising the Indemnitee of the identity of the Independent Counsel so selected. If a Change in
Control shall have occurred and the Indemnitee shall have requested that indemnification be
determined by Independent Counsel, then the Independent Counsel shall be selected by the Indemnitee
(unless the Indemnitee shall request that such selection be made by the Board of Directors, in
which event the preceding sentence shall apply), and the Indemnitee shall give written notice to
the Company advising it of the identity of the Independent Counsel so selected. In either event,
the Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of
selection has been given, deliver to the Company or to the Indemnitee, as the case may be, a
written objection to such selection; provided, however, that such objection may be asserted only on
the ground that the law firm or person so selected does not meet the requirements of “Independent
Counsel” as defined in Section 23 of this Agreement, and the objection shall set forth the basis of
such assertion. Absent a proper and timely objection, the person so selected shall act as
Independent Counsel. If such written objection is so made and substantiated, the law firm or person
so selected may not serve as Independent Counsel unless and until such objection is withdrawn or
the Court of Chancery of the State of Delaware or another court of competent jurisdiction in the
State of Delaware has determined that such objection is without merit. If the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to Section 5(b) hereof
and, following the expiration of 20 days after submission by the Indemnitee of a written request
for indemnification pursuant to Section 5(a) hereof, Independent Counsel shall not have been
selected, or an objection thereto has been made and not withdrawn, then either the Company or the
Indemnitee may petition the Court of Chancery of the State of Delaware or other court of competent
jurisdiction in the State of Delaware for resolution of any objection that shall have been made by
the Company or the Indemnitee to the other’s selection of Independent Counsel and/or for
appointment as Independent Counsel of a law firm or person selected by such court (or selected by
such person as the court shall designate), and the law firm or person with respect to whom all
objections are so resolved or the law firm or person so appointed shall act as Independent Counsel
under Section 5(b) hereof. Upon the due commencement of any judicial proceeding or arbitration
pursuant to Section 7(a) of this Agreement, Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the applicable standards of professional
conduct then prevailing). If the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 5(b) hereof, then the Company agrees to pay the reasonable
fees and expenses of such Independent Counsel and to fully indemnify and
hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant thereto.



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     Section 6. Burden of Proof; Defenses; and Presumptions.




     (a) In any judicial proceeding or arbitration pursuant to Section 7 hereof brought by the
Indemnitee to enforce rights to indemnification or to an advancement of expenses hereunder, or in
any action, suit, or proceeding brought by the Company to recover an advancement of expenses
(whether pursuant to the terms of an undertaking or otherwise), the burden shall be on the Company
to prove that the Indemnitee is not entitled to be indemnified, or to such an advancement of
expenses, as the case may be.



     (b) It shall be a defense in any judicial proceeding or arbitration pursuant to Section 7
hereof to enforce rights to indemnification under Section 2(b) or Section 2(c) hereof (but not in
any judicial proceeding or arbitration pursuant to Section 7 hereof to enforce a right to an
advancement of expenses under Section 3 hereof) that the Indemnitee has not met the standards of
conduct set forth in Section 2(b) or Section 2(c), as the case may be, but the burden of proving
such defense shall be on the Company. With respect to any judicial proceeding or arbitration
pursuant to Section 7 hereof brought by the Indemnitee to enforce a right to indemnification
hereunder, or any action, suit, or proceeding brought by the Company to recover an advancement of
expenses (whether pursuant to the terms of an undertaking or otherwise), neither (i) the failure of
the Company (including by its directors or Independent Counsel) to have made a determination prior
to the commencement of such action, suit, proceeding, or arbitration that indemnification is proper
in the circumstances because the Indemnitee has met the applicable standards of conduct, nor (ii)
an actual determination by the Company (including by its directors or Independent Counsel) that the
Indemnitee has not met such applicable standards of conduct, shall create a presumption that the
Indemnitee has not met the applicable standards of conduct or, in the case of a judicial proceeding
or arbitration pursuant to Section 7 hereof brought by the Indemnitee seeking to enforce a right to
indemnification, be a defense to such proceeding or arbitration.



     (c) The termination of any Proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendre or its equivalent, shall not, of itself, adversely affect the right of the
Indemnitee to indemnification hereunder or create a presumption that the Indemnitee did not act in
good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his or her conduct was unlawful.



     (d) For purposes of any determination of good faith, Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of account of the
Company or Other Enterprise, including financial statements, or on information supplied to
Indemnitee by the officers of the Company or Other Enterprise in the course of their duties, or on
the advice of legal counsel for the Company or Other Enterprise or on information or records given
or reports made to the Company or Other Enterprise by an independent certified public accountant or
by an appraiser or other expert selected by the Company or Other Enterprise. The provisions of
this Section 6(d) shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of
conduct set forth in this Agreement.



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     (e) The knowledge and/or actions, or failure to act, of any other director, officer, agent,
or employee of the Company or of Another Enterprise shall not be imputed to the Indemnitee for
purposes of determining the Indemnitee’s right to indemnification under this Agreement.



     Section 7. Remedies of Indemnitee.




     (a) In the event that (i) a determination is made pursuant to Section 5 of this Agreement
that the Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 3 of this Agreement, (iii) if the determination of
entitlement to indemnification is not to be made by Independent Counsel pursuant to Section 5(b)
hereof, no determination of entitlement to indemnification shall have been made pursuant to Section
5(b) of this Agreement within 60 days after receipt by the Company of the Indemnitee’s written
request for indemnification, (iv) if the determination of entitlement to indemnification is to be
made by Independent Counsel pursuant to Section 5(b) hereof, no determination of entitlement to
indemnification shall have been made pursuant to Section 5(b) hereof within 80 days after receipt
by the Company of the Indemnitee’s written request for indemnification, unless an objection to the
selection of such Independent Counsel has been made and substantiated and not withdrawn, in which
case the applicable time period shall be 70 days after the Court of Chancery of the State of
Delaware or another court of competent jurisdiction in the State of Delaware (or such person
appointed by such court to make such determination) has determined or appointed the person to act
as Independent Counsel pursuant to Section 5(b) hereof, (v) payment of indemnification is not made
pursuant to Section 2(d) or Section 2(e) of this Agreement within 20 days after receipt by the
Company of a written request therefor, or (vi) payment of indemnification pursuant to Section 2(b)
or Section 2(c) of this Agreement is not made within 20 days after a determination has been made
pursuant to Section 5(b) that the Indemnitee is entitled to indemnification, then the Indemnitee
shall be entitled to seek an adjudication by the Court of Chancery of the State of Delaware of the
Indemnitee’s entitlement to such indemnification or advancement of Expenses. Alternatively, if the
foregoing conditions have been satisfied, the Indemnitee, at his or her option, may seek an award
in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. The Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on which the Indemnitee
first has the right to commence such proceeding pursuant to this Section 7(a); provided, however,
that the foregoing clause shall not apply in respect of a proceeding brought by the Indemnitee to
enforce his or her rights to indemnification under Section 2(d) of this Agreement.



     (b) In the event that a determination shall have been made pursuant to Section 5(b) of this
Agreement that the Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section 7 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the Indemnitee shall not be prejudiced by reason of that
adverse determination.



     (c) If a determination shall have been made pursuant to Section 5(b) of this Agreement that
the Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration commenced pursuant to this Section 7, absent (i) a
misstatement or misrepresentation by the Indemnitee (or anyone acting on the Indemnitee’s behalf)
of a material fact, or an omission of a material fact necessary to make the Indemnitee’s



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statement (or statements of persons acting on behalf of the Indemnitee) not materially misleading,
in connection with the request for indemnification or in connection with the provision of
information or documentation pursuant to the last sentence of Section 5(b), or (ii) a prohibition
of such indemnification under applicable law.



     (d) In the event that the Indemnitee, pursuant to this Section 7, seeks a judicial
adjudication of or an award in arbitration to enforce the Indemnitee’s rights under, or to recover
damages for breach of, this Agreement, then the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses actually and
reasonably incurred by or on behalf of such Indemnitee in such judicial adjudication or
arbitration, but only if (and only to the extent) the Indemnitee prevails therein. If it shall be
determined in said judicial adjudication or arbitration that the Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the expenses incurred by
the Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately
prorated.



     Section 8. Non-Exclusivity. Except to the extent expressly provided herein, and only to
such extent, the rights of indemnification and to receive advancement of Expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may at any
time be entitled under applicable law, the Company’s Certificate of Incorporation, the Company’s
Bylaws, any agreement, a vote of stockholders, a resolution of directors, or otherwise, both as to
action in or by reason of the Indemnitee’s Corporate Status and as to action in or by reason of any
other capacity of the Indemnitee while serving as a director or officer of the Company. No right or
remedy herein conferred is intended to be exclusive of any other right or remedy, and every other
right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. In the event of any change
after the date of this Agreement in any applicable law, statute or rule which expands the right of
a Delaware corporation to indemnify a member of its board of directors or an officer, employee,
agent or fiduciary, it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits afforded by such change. Anything in this Section 8 to the contrary
notwithstanding, to the extent the time periods specified in Section 3 and Section 7(a) hereof with
respect to the time at which the Indemnitee shall be entitled to seek an adjudication or an award
in arbitration as to the Indemnitee’s entitlement to indemnification or advancement differ from
similar time periods specified in the Company’s Certificate of Incorporation or Bylaws, the time
periods set forth in Section 3 and Section 7(a) hereof shall control and be binding on the
Indemnitee and the Company and shall be deemed a waiver of any contrary right specified in the
Company’s Certificate of Incorporation or Bylaws. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other right or remedy.



     Section 9. Insurance; Subrogation; Other Sources of Payment; Limitations on Payment.



     (a) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the Company or Another
Enterprise, Indemnitee shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available for any such director, officer, employee or
agent under such policy or policies. If, at the time of the receipt of a notice of a claim



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pursuant to the terms hereof, the Company has director and officer liability insurance in effect,
the Company shall give prompt notice of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective policies. The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such proceeding in accordance with the terms of such policies.



     (b) In the event of any payment to or on behalf of the Indemnitee under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.



     (c) Except to the extent required by applicable law, the Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder (or for which
advancement is otherwise provided hereunder) if and to the extent that the Indemnitee has otherwise
actually received such payment under any insurance policy, contract, agreement, or otherwise.
Nothing hereunder is intended to affect any right of contribution of or against the Company in the
event the Company and any other person or persons shall have co-equal obligations to indemnify or
advance expenses to Indemnitee.



     (d) The Company’s obligation to indemnify or advance Expenses hereunder to the Indemnitee,
in connection with or by reason of Indemnitee’s service at the request of the Company as a
director, officer, employee, agent, or fiduciary of Another Enterprise, shall be reduced by any
amount that the Indemnitee has actually received as indemnification or advancement of Expenses from
such Other Enterprise with respect to the Proceeding for which indemnification or advancement of
Expenses is sought.



     (e) Notwithstanding any provision in this Agreement to the contrary, the Company shall not be
obligated to make any indemnity in connection with any claim made against Indemnitee for (i) an
accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of
securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar
provisions of state statutory law or common law, or (ii) any reimbursement of the Company by the
Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits
realized by the Indemnitee from the sale of securities of the Company, as required in each case
under the Securities Exchange Act of 1934 (including any such reimbursements that arise from an
accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002
(the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and
sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act).



     Section 10. Settlements. Anything in this Agreement or the Company’s Certificate of
Incorporation or Bylaws to the contrary notwithstanding, the Company shall have no obligation to
indemnify the Indemnitee for any amounts paid by or on behalf of the Indemnitee in settlement of
any Proceeding, unless the Company has consented in writing to such settlement, which consent shall
not be unreasonably withheld. The Company shall not settle any claim in any manner that would
impose any fine or any obligation on the Indemnitee without the Indemnitee’s prior written consent,
which consent shall not be unreasonably withheld.



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     Section 11. Survival of Rights; Binding Effect; Successors and Assigns.



     (a) The indemnification and advancement of Expenses and other rights provided by, or granted
pursuant to, this Agreement shall continue during the period that the Indemnitee is a director or
officer of the Company and shall continue after the Termination Date with respect to claims arising
from any action taken or omitted by the Indemnitee, or facts or events that occurred, on or before
the Termination Date.



     (b) This Agreement shall be binding upon the Indemnitee and upon the Company and its
successors and assigns, and shall inure to the benefit of the Indemnitee, the Indemnitee’s heirs,
personal representatives, executors, administrators, and assigns and to the benefit of the Company
and its successors and assigns.



     (c) The Company further agrees that in the event the Company or any of its successors or
assigns (i) consolidates with or merges into any other corporation or entity and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or
conveys all or substantially all of its properties and assets to any corporation or entity, then,
and in each such case, to the extent necessary, proper provision shall be made so that the
successors and assigns of the Company as a result of such transaction assume the obligations of the
Company set forth in this Agreement, including, without limitations, the requirements with respect
to directors’ and officers’ liability insurance set forth in Section 9.



     Section 12. Severability. If any provision or provisions of this Agreement shall be held
to be invalid, illegal, or unenforceable for any reason whatsoever: (a) the validity, legality, and
enforceability of the remaining provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal,
or unenforceable, that is not itself invalid, illegal, or unenforceable) shall not in any way be
affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law;
(b) such provision or provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to be invalid, illegal,
or unenforceable, that it not itself invalid, illegal, or unenforceable) shall be construed so as
to give effect to the intent manifested thereby.



     Section 13. Acknowledgement. The Company expressly acknowledges, confirms, and agrees
that it has entered into this Agreement and has assumed the obligations imposed on the Company
hereby in order to induce the Indemnitee to serve or continue to serve as a director or officer of
the Company, and the Company acknowledges that the Indemnitee is relying upon this Agreement in
serving and continuing to serve in such capacity. In addition, both the Company and Indemnitee
acknowledge that in certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its directors, officers, employees, agents or fiduciaries under this
Agreement or otherwise. Indemnitee understands and acknowledges that the Company may be required
in the future to undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the Company’s rights
under public policy to indemnify Indemnitee.



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     Section 14. Notice by Indemnitee. The Indemnitee agrees to notify the Company promptly
and in writing upon being served with any summons, citation, subpoena, complaint, petition,
indictment, information, or other document relating to the commencement or threatened
commencement of any Proceeding or matter that may be subject to indemnification or advancement of
Expenses covered hereunder. The failure of the Indemnitee to so notify the Company shall not
relieve the Company of any obligation that it may have to the Indemnitee under this Agreement or
otherwise, except to the extent the Company is materially prejudiced by such failure. In addition,
Indemnitee shall give the Company such information and cooperation as may be reasonably required
and as shall be within Indemnitee’s power in connection with any matters for which indemnification
is sought under Section 2 .



     Section 15. Notices. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) if delivered by hand to the
party to whom said notice or other communication shall have been directed, on the date so
delivered, or (ii) if mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed. All such notices, requests, demands, and
other communications shall be delivered to the Indemnitee or to the Company, as the case may be, at
the following addresses:



          (a) if to the Indemnitee, to the address set forth on the signature page hereto; and




          (b) if to the Company, to:



MAKO Surgical Corp.

2555 Davie Road

Ft. Lauderdale, FL 33317

Attn: Menashe R. Frank,

Senior Vice President, General Counsel and Secretary



or to such other address as may have been furnished to the Indemnitee by the Company or to the
Company by the Indemnitee, as the case may be, by like notice.




     Section 16. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement.



     Section 17. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.



     Section 18. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral, written, and implied, between the parties hereto with respect to the
subject matter hereof.



     Section 19. Modification and Waiver.




     (a) No amendment, modification, supplementation, or repeal of this Agreement or any
provision hereof shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.



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     (b) No amendment, modification, supplementation, or repeal of this Agreement or of any
provision hereof shall limit or restrict any rights of the Indemnitee under this Agreement in
respect of any action taken or omitted by the Indemnitee in or by reason of the Indemnitee’s
Corporate Status prior to such amendment, modification, supplementation, or repeal.



     Section 20. Governing Law; Submission to Jurisdiction; Service of Process.




     (a) This Agreement and the legal relations among the parties with respect to the matters
addressed hereby shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws rules.



     (b) Except with respect to any arbitration commenced by the Indemnitee pursuant to Section
7(a) of this Agreement and except to the extent permitted by Section 2(c) hereof with respect to a
determination by a court in which an underlying Proceeding was brought that the Indemnitee is
entitled to indemnification of Expenses notwithstanding an adjudication of liability to the
Company, the Company and the Indemnitee each hereby irrevocably and unconditionally (i) agrees and
consents to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action, suit, or proceeding that arises out of or relates to this Agreement and agrees
that any such action instituted under this Agreement shall be brought only in the Court of Chancery
of the State of Delaware (or in any other state court of the State of Delaware if the Court of
Chancery does not have subject matter jurisdiction over such action), and not in any other state or
federal court in the United States of America or any court or tribunal in any other country; (ii)
consents to submit to the exclusive jurisdiction of the courts of the State of Delaware for
purposes of any action or proceeding arising out of or in connection with this Agreement; (iii)
waives any objection to the laying of venue of any such action or proceeding in the courts of the
State of Delaware; and (iv) waives, and agrees not to plead or to make, any claim that any such
action or proceeding brought in the courts of the State of Delaware has been brought in an improper
or otherwise inconvenient forum.



     (c) Each of the Company and the Indemnitee hereby consents to service of any summons and
complaint and any other process that may be served in any action, suit, or proceeding arising out
of or relating to this Agreement in any court of the State of Delaware by mailing by certified or
registered mail, with postage prepaid, copies of such process to such party at its address for
receiving notice pursuant to Section 15 hereof. Nothing herein shall preclude service of process by
any other means permitted by applicable law.



     Section 21. Nature of Agreement. This Agreement shall not be deemed an employment
contract between the Company and the Indemnitee, and, if Indemnitee is an officer or employee of
the Company, Indemnitee specifically acknowledges that Indemnitee may be discharged as an officer
or employee of the Company at any time for any reason, with or without cause, and with or without
severance compensation, except as may be otherwise provided in a separate written contract between
the Company and the Indemnitee.



     Section 22. Definitions. For purposes of this Agreement:



     (a) “Another Enterprise” and “Other Enterprise” refer to a corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan, or any other form of enterprise,
other than the Company.



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     (b) “Change in Control” means, and shall be deemed to have occurred if, (i) any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than a trustee or other fiduciary holding securities under an employee benefit plan of the
Company acting in such capacity or a corporation owned directly or indirectly by the stockholders
of the Company in substantially the same proportions as their ownership of stock of the Company,
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing more than fifty percent (50%) of the total voting power
represented by the Company’s then outstanding voting stock, (ii) during any period of two (2)
consecutive years (not including any period prior to the execution of this Agreement), individuals
who at the beginning of such period constitute the Board of Directors of the Company and any new
director whose election by the Board of Directors or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the directors then still in office
who either were directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a majority thereof, (iii)
the stockholders of the Company approve a merger or consolidation of the Company with any other
corporation other than a merger or consolidation that would result in the voting stock of the
Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting stock of the surviving entity) at least fifty percent
(50%) of the total voting power represented by the voting stock of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one transaction or a series of related transactions) of all or
substantially all of the Company’s assets.



     (c) “Corporate Status” describes the Indemnitee’s status as a present or former director or
officer of the Company or the Indemnitee’s status, at any time while serving as a director or
officer of the Company, as a director, officer, employee, agent, or fiduciary of Another Enterprise
to the extent the Indemnitee is or was serving in such capacity with respect to such Other
Enterprise at the request of Company.



     (d) “Expenses” includes, without limitation, reasonable attorneys’ fees; retainers;
disbursements of counsel; court costs; filing fees; transcript costs; fees and expenses of experts;
fees and expenses of witnesses; fees and expenses of accountants and other consultants (excluding
public relations consultants unless approved in advance by the Company); travel expenses;
duplicating and imaging costs; printing and binding costs; telephone charges; facsimile
transmission charges; computer legal research costs; postage; delivery service fees; fees and
expenses of third-party vendors; the premium, security for, and other costs associated with any
bond (including supersedeas or appeal bonds, injunction bonds, cost bonds, appraisal bonds or their
equivalents), in each case incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, a Proceeding (including, without limitation, any judicial or arbitration
Proceeding brought to enforce the Indemnitee’s rights under, or to recover damages for breach of,
this Agreement), as well as all other “expenses” within the meaning of that term as used in Section
145 of the General Corporation Law of the State of Delaware and all other disbursements or expenses
of types customarily and reasonably incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise
participating in, actions, suits, or proceedings similar to or of the same



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type as the Proceeding with respect to which such disbursements or expenses were incurred; but,
notwithstanding anything in the foregoing to the contrary, “Expenses” shall not include amounts of
judgments, penalties, or fines actually levied against the Indemnitee in connection with any
Proceeding.



     (e) “Disinterested Director” means a director of the Company who is not and was not a party
to the Proceeding in respect of which indemnification is sought by the Indemnitee.



     (f) “Independent Counsel” means a law firm, or a person admitted to practice law in any
State of the United States, that is experienced in matters of corporation law and neither presently
is, nor in the past three years has been, retained to represent: (i) the Company or the Indemnitee
in any matter material to either such party (other than with respect to matters concerning the
Indemnitee under this Agreement, or of other indemnities under similar indemnification agreements),
or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any law firm or
person who, under the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Company or the Indemnitee in an action to determine
the Indemnitee’s rights under this Agreement.



     (g) “Losses” means all Expenses, judgments, penalties, fines, liabilities and amounts paid
in settlement in connection with a Proceeding.



     (h) “Proceeding” means any threatened, pending, or completed action, suit, arbitration,
alternative dispute resolution mechanism, investigation (including any internal investigation),
inquiry, administrative hearing, or any other threatened, pending, or completed proceeding, whether
brought by or in the right of the Company or otherwise, and whether civil, criminal,
administrative, or investigative.



     (i) “Termination Date” shall mean the date on which the Indemnitee is no longer a director
or officer of the Company or of Another Enterprise and shall continue so long as Indemnitee shall
be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding
commenced by Indemnitee pursuant to Section 7 of this Agreement) by reason of Indemnitee’s
Corporate Status, whether or not Indemnitee is acting in any such capacity at the time any
liability or expense is incurred for which indemnification can be provided under this Agreement.



     (j) References herein to “fines” shall include any excise tax assessed with respect to any
employee benefit plan.



     (k) References herein to a director of Another Enterprise or a director of an Other
Enterprise shall include, in the case of any entity that is not managed by a board of directors,
such other position, such as manager or trustee or member of the governing body of such entity,
that entails responsibility for the management and direction of such entity’s affairs, including,
without limitation, the general partner of any partnership (general or limited) and the manager or
managing member of any limited liability company.



     (l) (i) References herein to serving at the request of the Company as a director, officer,
employee, agent, or fiduciary of Another Enterprise shall include any service as a director,
officer, employee, or agent of the Company that imposes duties on, or involves services by, such



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director or officer with respect to an employee benefit plan of the Company or any of its
affiliates, other than solely as a participant or beneficiary of such a plan; and (ii) if the
Indemnitee has acted in good faith and in a manner such the Indemnitee reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan, the Indemnitee
shall be deemed to have acted in a manner not opposed to the best interests of the Company for
purposes of this Agreement.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the Company and the Indemnitee have executed this Agreement on and as of
the day and year first above written.



	 	 	 	 	 
	 	MAKO SURGICAL CORP.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	INDEMNITEE

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




-16-









 





Exhibit A




UNDERTAKING




     I, __________________, agree to reimburse MAKO Surgical Corp. (the “Company”) for all
expenses paid to me or on my behalf by the Company in connection with my involvement in [name or
description of proceeding or proceedings], in the event, and to the extent, that it shall
ultimately be determined that I am not entitled to be indemnified by the Company for such expenses.



	 	 	 	 	 
	 	 	 
	 	Signature:  	
 	 
	 	 	Name: