EX-10.21 Amendment to Addendum



 





EXHIBIT 10.21




AMENDMENT TO ADDENDUM TO ASSET CONTRIBUTION AGREEMENT




     THIS AMENDMENT (together with all exhibits hereto, this “Amendment”) TO THE ADDENDUM TO ASSET
CONTRIBUTION AGREEMENT (the “Addendum”) is made and entered into effective the 26th day of April,
2007 (the “Effective Date”), by and among Z-KAT, INC., a Florida corporation (“Z-KAT”), and MAKO
Surgical Corp, a Delaware corporation (“MAKO,” with each of Z-KAT and MAKO being referred to as a
“Party” and, together, as the “Parties.”)



RECITALS




     The following recitals for the basis hereof, are hereby acknowledged to be true by the
Parties, and are hereby incorporated herein by this reference:




	 	A.	 	Section 4 of the Addendum contemplated the complete transition and transfer of
all of Z-KAT’s business activities (e.g. administrative and commercial functions) from
MAKO to Z-KAT during the period beginning December 28, 2006 and ending on or before
April 28, 2007 (the “Transition Period”).
	 
	 	B.	 	Section 3 of the Addendum contains specific prohibitions pertaining to actions
and activities by MAKO employees on behalf of Z-KAT, both during the Transition Period
and thereafter.
	 
	 	C.	 	The Parties desire to extend the Transition Period to allow for the orderly and
complete transfer and transition of business activities, while simultaneously ensuring
that no actions undertaken are violative of the prohibitions set forth in the Addendum.
	 
	 	D.	 	Terms not expressly defined in this Amendment shall have the meanings ascribed
in the Addendum.





     NOW THEREFORE, for and in consideration of the premises, the mutual representations,
warranties and covenants herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:



AGREEMENT




     1. EXTENSION OF TRANSITION PERIOD. Section 4.2 of the Addendum is deleted in its
entirety, and the following new Section 4.2 substituted therefore:



For the period commencing as of the Effective Date and concluding no later than May 31, 2007
(the “Transition Period”), each of Z-KAT and MAKO agree to make best efforts to completely
transfer all business activities (e.g., administrative (legal and accounting) and commercial
(sale of markers)) to Z-KAT personnel (the “Transition”), subject to the following terms,
conditions and restrictions:




 






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     (a) Applicable MAKO personnel shall provide reasonable services at no charge (but
subject to the Consulting Conditions) to assist during the Transition Period, including,
without limitation, (i) providing specific instructions to any Z-KAT nominee dedicated by
Z-KAT to fulfilling commercial orders for fiducial markers (the “Nominee”), including
acquainting such Nominee with all information required to fulfill such commercial orders in
compliance with known applicable regulatory requirement (if any) and (ii) identifying for
Z-KAT what hard assets and business files (not financial or legal) segregated and identified
at the MAKO facility are or could be valuable to Z-KAT for potential future business (such
person being referred to as the “Appraiser”).




     (b) Z-KAT will remove all assets and inventory from MAKO’s facility by the conclusion
of the Transition Period.




     (c) Upon reasonable request during or after the Transition, MAKO will, at Z-KAT’s
option and upon written request, either deliver to or cause to be delivered to Z-KAT or make
available to Z-KAT on a commercially reasonable basis during normal business hours, any or
all of the following requested documents:




          (i) all financial and legal records relating to Z-KAT in the possession of MAKO and any
copies of all technical documentation owned by Z-KAT in the possession of any of MAKO’s
employees, consultants and advisors (including all information originally provided by Z-KAT
to MAKO); and




          (ii) copies of all information (documents, software, etc.) with respect to all
Improvements (as defined in the Z-KAT/MAKO 2004 License), Licensed IP Rights and Technical
Information (as those terms are defined in the Z-KAT/MAKO 2006 License), or other properties
that are licensed to Z-KAT.




     (d) During and for a reasonable time following the Transition Period, Z-KAT will have
reasonable access to MAKO personnel (subject to the Consulting Conditions) for purposes of
assisting Z-KAT personnel in understanding the documentation referenced in this Section 4.2.




     (e) Z-KAT may periodically request delivery, and MAKO will deliver or cause to be
delivered, any new information (documents, software, etc.) first created after delivery of
information pursuant to section 4.2(c)(ii) with respect to all Improvements (as defined in
the Z-KAT/MAKO 2004 License), Licensed IP Rights and Technical Information (as those terms
are defined in the Z-KAT/MAKO 2006 License), or other properties that are licensed to Z-KAT.



     2. ACCEPTANCE OF INITIAL NOMINEE AND APPRAISER. The Parties agree that for all
purposes, the designation of (a) Deb Abovitz, wife of MAKO Employee Rony Abovitz, as the Nominee
and (b) Rony Abovitz as the Appraiser, each is and shall be acceptable during and after the
Transition, it being expressly acknowledged that neither such designation shall constitute a
Material Breach under the Addendum.



     3. DISPOSITION OF CERTAIN ASSETS. MAKO represents and warrants to Z-KAT that,
pursuant to Z-KAT’s request and on its behalf, on April 23, 2007, MAKO shipped


 







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sixteen
(16) boxes of legal files to Z-KAT’s attorney
Fulbright & Jaworski LLP. A true and correct copy of the
Bill of Lading is attached hereto as Exhibit A.



     4. EFFECT ON THE ADDENDUM. Except as may be expressly provided herein, all terms and
conditions set forth in the Addendum to which this Amendment applies, shall remain in full force
and effect. In the event of a conflict between this Amendment and the Addendum, this Amendment
shall be controlling.



     5. SIGNATURES. The Parties, having carefully read this Amendment and having consulted
or been given an opportunity to consult counsel, have indicated their agreement to all of the above
terms by signing this document. Each signatory hereto represents that it is authorized to sign
this Amendment on behalf of the party for whom it purports to sign, having received all necessary
corporate approvals.



* * *




     IN WITNESS WHEREOF, each Party has caused this Amendment to be executed by its duly authorized
representatives on the respective dates entered below.



	 	 	 	 	 
	 	Z-KAT, Inc., 1940 Harrison Street, Suite 300,

Hollywood, FL 33020

 	 
	 	By:  	/s/  John Whitman
 	 
	 	 	Name:  	John R. Whitman 	 
	 	 	Title:  	Chairman
Date: 4/26/07 	 
	 	 	Date: 	4/26/07 	 
	 
	 	MAKO Surgical Corp., 2555 Davie Road

Ft. Lauderdale, FL 33317

 	 
	 	By:  	/s/ Maurice Ferré
 	 
	 	 	Name:  	Maurice Ferré 	 
	 	 	Title:  	President 	 
	 	 	Date: 	4/26/07 	 
	 



 








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Exhibit A




[Both now and at the time of execution, the Amendment to Addendum to Asset Contribution Agreement, dated April 26, 2007, between MAKO Surgical Corp. and Z-KAT, Inc.,
Exhibit A to the Amendment to Addendum to Asset Contribution Agreement (i.e., a Billing of Lading) did not and does not include this exhibit.]