Exhibit 10.1


 


 


EXECUTION VERSION


 


SEVERANCE AGREEMENT AND FULL AND FINAL RELEASE


 


 


This Severance Agreement and Full
and Final Release (this “Severance Agreement”), by and between James E. Keller (“Former Employee”)
and MAKO Surgical Corp. (“MAKO,” and together with Former Employee, the “Parties”), shall
be effective as of February 3, 2012 (the “Effective Date”).


 


RECITALS


 


WHEREAS, MAKO is a medical
device company engaged in the development of advanced technologies and procedures for the orthopedic market;


 


WHEREAS, MAKO and Former Employee
entered into that certain Employment Agreement, effective as of March 22, 2010 (the “Employment Agreement”);
and


 


WHEREAS, Former Employee has tendered
his resignation to be effective as of the Effective Date and his employment with MAKO shall
terminate as of the Effective Date (“Termination Date”).


 


AGREEMENT


 


NOW,
THEREFORE BE IT RESOLVED, in consideration of the mutual promises and covenants contained
herein, the Parties agree as follows:


 


1.        The parties agree and acknowledge
that as of the Effective date hereof, the Employment Agreement is terminated and shall be of no further force effect except as
set forth herein.


 


2.        Upon the receipt by MAKO
of this fully executed Severance Agreement, MAKO will, contingent upon the representations, warranties and covenants of Former
Employee set forth herein, be bound to:


 


(a)      pay
Former Employee severance equal to six (6) months Base Salary (as defined in the Employment Agreement)
at the rate currently in effect, less appropriate payroll deductions as were made during Former Employee’s period of employment
in monthly installments, with the first such payment to be made in arrears on March 1, 2012.


 


(b)      pay Former Employee for
the accrued (through the Termination Date) and unpaid Base Salary.


 


(c)      pay Former Employee Seventeen
Thousand Nine Hundred Seventy Nine Dollars and 20/00 Cents ($17,979.20) for earned (through the Termination Date) but unused vacation
for 2012.


 


(d)      pay Former Employee for
any unreimbursed business-related expenses, in accordance with MAKO policy.


 


(e)      notwithstanding anything
to the contrary in the 2011 Leadership Cash Bonus Plan, pay Former Employee his earned 2011 bonus if and when the Compensation
Committee of the Board of Directors of MAKO approves a bonus for similarly situated employees.


 



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EXECUTION VERSION


 


 


(f)      pay
Former Employee Ten Thousand Six Hundred Forty Two Dollars and 37/00 Cents ($10,642.37) in a lump sum payment, to be used
by Former Employee to pay for continued health insurance coverage for six (6) months under the existing
MAKO plan, provided that (i) Former Employee timely completes all forms and documentation required
by MAKO and/or MAKO’s insurance carrier and/or agent (including, without limitation, as required under The Consolidated Omnibus
Budget Reconciliation Act (COBRA)); and (ii) Former Employee expressly acknowledges that MAKO
shall not provide matching contributions to the HSA deductible during this period. Nothing in this Section 1(f) shall operate to
limit Former Employee’s entitlement to continue COBRA coverage at Former Employee’s
own sole expense after the expiration of the one hundred eighty (180) day period.


 


(g)      grant Former Employee the
right, but not the obligation, for a period extending from the Termination Date until ninety (90) days thereafter, to exercise
all or a portion of the Former Employee vested (as of the Effective Date) options to purchase MAKO’s common stock (the “Option”).
The Option may be exercised by Former Employee’s delivery to the Company of written notice of exercise on any business day
during the exercise period, at MAKO’s principal office, on the notice of election form specified by MAKO. Such notice shall
specify the number of shares of stock with respect to which the Option is being exercised (“Option Shares”),
the method of exercise (i.e., standard exercise, net issuance exercise, or broker assisted cashless exercise), and, to the extent
applicable, shall be accompanied by payment in full of the Option price of the Option Shares plus the amount (if any) of federal
and/or other taxes which MAKO may, in its judgment, be required to withhold. The minimum number of shares of stock with respect
to which an Option may be exercised, in whole or in part, at any time shall be the lesser of (i) 100 shares or such lesser number
set forth in the applicable Option Agreement and (ii) the maximum number of shares available for purchase under the Option
at the time of exercise. A copy of MAKO’s 2008 Omnibus Incentive Plan and notice of exercise form have been previously furnished
to Former Employee.


 


3.        Notwithstanding anything
to the contrary in the Employment Agreement, MAKO waives its right to receive payment from Former Employee for any or all of the
Relocation Payments described in the Employment Agreement.


 


4.        Former
Employee specifically acknowledges and agrees to the following:


 


(a)      In
accordance with the Older Workers Benefit Protection Act, MAKO has advised Former Employee to
seek advice of counsel with respect to whether Former Employee should execute this Severance Agreement; that Former Employee
has a period of twenty-one (21) days in which to consider this Severance Agreement; that Former
Employee also may, but need not, execute this Severance Agreement prior to the expiration of the twenty-one
(21) days; and that Former Employee may revoke this Severance Agreement at any time within seven
(7) days after execution. In order for any such revocation to be effective, it must in a writing delivered to MAKO and received
within seven (7) days after Former Employee has executed this Severance Agreement (the “Revocation
Deadline”). If Former Employee exercises the option to revoke this Severance Agreement
as provided herein, Former Employee will not be entitled to any of the payments and/or benefits
described in this Severance Agreement.


 


(b)      Former
Employee has consulted with and been advised by an attorney before entering into this Severance Agreement.


 


(c)      Former
Employee is specifically releasing, among other claims, any claims under Fla. Stat. §760.10(1)(a)
(and all amendments thereto), including, without limitation, claims related to the Age Discrimination in Employment Act of 1967
and all amendments thereto.


 


(d)      Former
Employee has not suffered a work-related injury that has not been properly disclosed to MAKO.


 



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EXECUTION VERSION


 


 


(e)      Former
Employee has been paid in full all wages due and owing to Former Employee for any and all work performed
for MAKO.


 


(f)      Former
Employee does not have knowledge of any facts that would give rise to a claim under the Family and Medical
Leave Act.


 


(g)      Former
Employee has not exercised any actual or apparent authority by or on behalf of MAKO that Former Employee
has not specifically disclosed to MAKO.


 


(h)      Former
Employee is not waiving rights or claims that may arise after the Effective Date that are not related
to Former Employee’s employment with MAKO or separation therefrom.


 


(i)      Former Employee is not aware
and has no knowledge of any violation, breach or infraction of or non-conformity with any federal or state law, rule or regulation
applicable to MAKO’s business by MAKO or an officer, employee, agent or consultant of MAKO acting on its behalf.


 


(j)       Former Employee acknowledges
that he has certain continued residual Section 16 obligations which he agrees to comply with.


 


5.        In
exchange for the benefits and payments offered above, Former Employee hereby unconditionally
and irrevocably releases and forever discharges MAKO and all past and present parent, subsidiary, affiliated and related corporations
and their divisions, and departments, and their directors, officers, shareholders, employees and agents, and their predecessors,
successors and assigns, or any of them, of and from, and agrees not to sue and not to assert against them any causes of action,
claims and demands whatsoever, known or unknown, at law, in equity, or before any agency or commission of local, state and federal
governments, arising, alleged to have arisen, or which might have been alleged to have arisen, or which may arise under any law
including, but not limited to federal, state, or municipal anti-discrimination laws, such as the Age Discrimination in Employment
Act of 1967, Older Workers Benefit Protection Act, Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964,
as amended in 1972, 1991; Fair Labor Standards Act, and Fla. Stat. §760.10(1)(a) (as amended from time to time), that Former
Employee directly and on behalf of persons similarly situated, ever had, now has or which Former Employee’s
heirs, executors, administrators, or assigns, or any of them, hereafter can, shall or may have for or by reason of any cause whatsoever,
to the Effective Date. This is a general release. Former Employee expressly acknowledges
that this general release includes, but is not limited to, any claims arising out of or related to Former Employee’s
employment with MAKO and separation therefrom.


 


6.        Former
Employee hereby represents and warrants that Former Employee shall have, as of the Termination Date,
returned in good condition all of the MAKO property in Former Employee’s possession (collectively, the “MAKO Property”).
MAKO’s discovery after the Termination Date that Former Employee has either withheld MAKO
Property or damaged or attempted to damage any MAKO Property and/or property (including intellectual property) of MAKO not otherwise
in Former Employee’s possession shall be grounds for immediate cessation of considerations
and benefits payable to Former Employee under Paragraph 1 of this Agreement, but such cessation
shall not limit or otherwise compromise other remedies available to MAKO.


 


7.        Former
Employee hereby acknowledges that MAKO holds all right, titles and interest in and to the MAKO Property,
and Former Employee hereby expressly and forever waives and such right, title and interest in
or to the MAKO Property


 



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EXECUTION VERSION


 


 


8.        Former
Employee agrees not to apply for employment with MAKO in the future. The Parties agree and further acknowledge
that Former Employee is not waiving claims or rights arising after the execution of this Severance
Agreement but that Former Employee has contractually agreed not to apply for employment with
MAKO in the future and this Severance Agreement shall constitute a bar of any claim that Former Employee may
have should Former Employee apply for employment with MAKO in the future and not be hired.


 


9.        Former Employee does hereby
(i) represent and warrant that as of the Effective Date; and (ii) covenant and agree that for the ten (10) year period following
the Effective Date; Former Employee has and shall refrain from making any disparaging, negative or uncomplimentary statements,
whether public or private, oral or written, in any form through any medium, including but not limited to, Internet postings, blogs
or email communications, regarding MAKO and/or any officers or employees of MAKO, strategic partners, third party providers or
MAKO’s products or services. In addition to any other remedies available to MAKO under this Severance Agreement, Former Employee’s
breach of this Section 7 shall allow for disgorgement of consideration paid to Former Employee by MAKO under this Severance Agreement.


 


10.     The
Parties understand that this Severance Agreement is made to compromise any potential claim and to avoid expenses related to such
potential claim. MAKO denies any and all liability to Former Employee and nothing in this Severance
Agreement shall be construed as an admission of wrongdoing by MAKO concerning Former Employee’s
employment or separation.


 


11.      This
Severance Agreement constitutes the complete understanding between the Parties. Former Employee especially
acknowledges and declares that no other contract, promise or inducement has been made.


 


12.      Former
Employee states and acknowledges that Former Employee has entered into this Severance Agreement voluntarily
and on Former Employee’s own free will; that Former Employee has understood fully all the terms of the Severance Agreement;
and that Former Employee has had sufficient and reasonable time to review the Severance Agreement
with anyone of Former Employee’s choosing.


 


13.      Except
as provided by law, Former Employee agrees not to disclose or publicize the terms or existence
of this Severance Agreement to anyone other than Former Employee’s attorney and tax advisor.
Former Employee shall not, directly or indirectly, use or divulge to any third party any of the
MAKO’s confidential or privileged information or materials disclosed or made available to Former Employee by
reason of Former Employee’s employment with MAKO and not generally known to the public.


 


14.      Former
Employee acknowledges and agrees that the agreement not to disclose referenced in Paragraph 13 above
shall be binding on Former Employee and that such agreement to be bound is indicated by Former
Employee’s signature affixed hereto. Former Employee’s signature affixed hereto also
indicates Former Employee’s agreement that this non-disclosure provision is a material element of this Severance Agreement
and is a part of the consideration for MAKO entering into this Severance Agreement. No action of MAKO shall be taken as a waiver
of its right to insist that Former Employee abide by the non-disclosure terms of this Severance
Agreement. 


 


15.      Former
Employee acknowledges and agrees that in the event of a breach of the agreement not to disclose, that
the amount of damages may be uncertain and that it would be difficult, or impossible, to calculate the amount of
damages. Accordingly, Former Employee agrees that in the event of a breach of this agreement
not to disclose, MAKO may institute legal proceedings against Former Employee including injunctive
proceedings without the requirement of a bond. The prevailing party in any such action shall be entitled, upon proof in court,
to damages, attorney fees, and costs. 


 



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EXECUTION VERSION


 


 


16.      The Parties acknowledge
that in executing this Severance Agreement they do not rely and have not relied on any representation or statement made by any
of the Parties or by any of the Parties’ agents, representatives, or attorneys with regard to the subject matter, basis,
or effect of this Severance Agreement or otherwise, other than those specifically stated in this written Severance Agreement.


 


17.      The Parties further acknowledge
and agree that any breach of any term, provision, or obligation of this Severance Agreement by any party, shall entitle the other
to seek enforcement of such term, provision or obligation in a court of law of competent jurisdiction, and shall entitle the prevailing
party to an award of the reasonable attorney’s fees and costs incurred in such proceeding. The proper and only venue for
any action based upon any alleged breach of any term, provision or obligation of this Severance Agreement shall be in Broward County,
Florida. The Parties agree that the interpretation and enforcement of this Severance Agreement shall be governed by the laws of
the State of Florida without regard to conflict of laws principles.


 


18.      Former
Employee acknowledges and reaffirms the post-employment covenants set forth in Section 5 of the Employment
Agreement (as attached hereto as Exhibit A and incorporated by reference herein), and Former Employee agrees
that all post-employment covenants remain in full force and effect and are hereby incorporated by reference into this Severance
Agreement, notwithstanding that the Agreement is hereby terminated. Without limiting the foregoing, Former Employee expressly
agrees and covenants to provide all assistance reasonably requested by MAKO in the establishment, preservation and enforcement
of its intellectual property rights, such assistance to be provided at MAKO’s expense, but without any additional compensation
to Former Employee.


 


19.      The Parties each agree not to make any statement,
written or verbal, to any party reasonably likely to be harmful to the other Party or to be injurious to the goodwill, reputation
or business standing of the other Party at any time in the future; provided, however, that this non-disparagement clause shall
not preclude any party or its agents or representatives from any good faith response to any inquiries under oath or in response
to governmental inquiry.


 


20.      Should any provision of
this Severance Agreement be declared or be determined by any court of competent jurisdiction to be illegal, invalid, unethical
or unenforceable, the legality, validity and enforceability of the remaining parts, terms or provisions shall not be affected thereby,
and said illegal, unenforceable, unethical or invalid part, term, or provision shall be deemed not to be part of this Severance
Agreement.


 


21.      This
Severance Agreement is freely assignable and transferable by MAKO, but shall not be assignable or transferable in any respect by
Former Employee.


 


22.      This Severance Agreement
may be executed in any number 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.


 


[signatures appear on following page]


 


 


 


 



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EXECUTION VERSION


 


 


IN WITNESS WHEREOF, each of the
Parties has executed this Severance Agreement on the date written below.


 





	Witness to Former Employee’s Signature:	 	FORMER EMPLOYEE:
	 	 	 	 
	Signature:	/s/
    Fritz LaPorte	 	 	 
	 	 	 	/s/ James E. Keller
	Name:	Fritz LaPorte 	 	James E. Keller
	 	 	 	 
	 	 	Date: January 31, 2012
	 	 	 	 
	 	 	MAKO Surgical Corp.
	 	 	 	 
	 	 	 	 
	 	 	By:	/s/ Maurice R. Ferré
	 	 	 	Maurice R. Ferré, President & CEO







 


 


 


 


 


 


 


 


 


 


 



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EXECUTION VERSION


 


 


EXHIBIT A


EMPLOYMENT AGREEMENT


 


[as previously filed with the Securities and Exchange
Commission on March 24, 2010 as Exhibit 10.1 to the Company’s Current Report on Form 8-K]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






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