Exhibit 10.3


 


SECURITY AGREEMENT


 


This Security
Agreement (this “Agreement”), dated as of May __, 2012, is entered into between MAKO Surgical Corp. ("Mako")
in favor of the parties identified as Lenders on the signature page of this Agreement  (the “Secured
Party”).


 


W I T N E S S E T H:


 


WHEREAS,
Mako has issued to the Lenders a promissory note dated May __, 2012 issued pursuant a Facility Agreement dated as of May 7, 2012
between Mako and the Secured Party;


NOW, THEREFORE,
in consideration of the mutual agreements set forth herein, Mako and the Secured Party agree as follows:


1.                  
Grant of Security Interest.


(a)                
To secure payment and performance of the Obligations (as defined below), Mako hereby grants
to Secured Party a security interest in all property and interests in property of Mako, whether now owned or hereafter acquired
or existing, and wherever located (the “Collateral”), including, without limitation, the following :


(i)                
all Accounts;


(ii)              
all Receivables;


(iii)            
all Equipment;


(iv)            
all General Intangibles;


(v)              
all Inventory;


(vi)            
all Investment Property; and


(vii)          
all proceeds and products of the foregoing.


Notwithstanding
anything to the contrary contained herein, the security interests granted under this Agreement shall not extend to, and the Collateral
shall not include Intellectual Property (the “Excluded Collateral”)


(b)                
[Reserved].


(c)                
Mako covenants not to enter into any agreement that prohibits the creation of the security
interest in the Collateral provided for in this Agreement other than (i) customary restrictions and conditions contained in agreements
relating to the sale of property pending such sale, provided such restrictions and conditions apply only to the property to be
sold, and (ii) customary provisions in leases, licenses and other contracts restricting the assignment thereof.



    	 



    	 



    

(d)                
Perfection of Security Interests.


(i)                
Mako authorizes Secured Party (or its agent) to file at any time and from time to time such
financing statements with respect to the Collateral naming Secured Party or its designee as the secured party and Mako as debtor,
as Secured Party may require in order to perfect the security interest in the Collateral granted pursuant to Section 1(a) required
by part 5 of Article 9 of the UCC of such jurisdictions as Secured Party may determine, together with any amendment and continuations
with respect thereto, which authorization shall apply to all financing statements filed on or after the date hereof; provided,
however, that if requested by Mako, any such financing statement or amendment shall specifically identify any Excluded Collateral.
In no event shall Mako at any time file, or permit or cause to be filed while any Obligations remain outstanding any correction
statement or termination statement with respect to any financing statement (or amendment or continuation with respect thereto)
with respect to the Collateral naming Secured Party or its designee as secured party and Mako as debtor.


(ii)              
Mako shall take any other action reasonably requested by Secured Party from time to time to
cause the attachment and perfection of, and the ability of Secured Party to enforce, the security interest of Secured Party in
the Collateral.


2.                  
Notice of Change in Certain Information. Mako covenants that it shall not (a) change
its name as it appears in official filings in the state of its incorporation, (b) change its chief executive office or sole place
of business, (c) change the type of entity that it is, (d) change its organization identification number, if any, issued by its
state of incorporation or (e) change its state of incorporation or organization, in each case, unless all filings have been made
under the UCC or otherwise that are required in order for the Secured Party to continue at all times following such change to have
a valid, legal and perfected security interest in all the Collateral.


3.                  
Remedies.


Upon the occurrence
and during the continuance of an Event of Default, (i) Secured Party shall have the right to exercise any right and remedy provided
for herein, under the UCC (as defined below) and at law or equity generally, including, without limitation, the right to foreclose
the security interests granted herein and to realize upon any Collateral by any available judicial procedure and/or to take possession
of and sell any or all of the Collateral with or without judicial process; and (ii) with or without having the Collateral at the
time or place of sale, Secured Party may sell the Collateral, or any part thereof, at public or private sale, at any time or place,
in one or more sales, at such price or prices, and upon such terms, either for cash, credit or future delivery, as Secured Party
may elect.


4.
                  
Representations and Warranties. Mako hereby represents
and warrants to Secured Party as of the date hereof that:


(a)                
Mako is a corporation duly organized and validly existing under the laws of Delaware.



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(b)                
The exact legal name of Mako is as set forth on the signature page of this Agreement. 


(c)                
The chief executive office and mailing address of Mako are located only at the address identified
as such on Schedule 4(c).


		5.	Expenses of Mako’s Duties; Secured Party’s
Right to Perform on Mako’s Behalf. 



(a)                
Mako’s agreements hereunder shall be performed by it at its sole cost and expense.


(b)                
If Mako shall fail to do any act which it has covenanted to do hereunder, Secured Party may
(but shall not be obligated to) do the same or cause it to be done, either in its name or in the name and on behalf of Mako, and
Mako hereby irrevocably authorizes Secured Party so to act.


6.                  
No Waivers of Rights hereunder; Rights Cumulative.


(a)                
No delay by Secured Party in exercising any right hereunder, or in enforcing any of the Obligations,
shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude other or further exercises thereof
or the exercise of any other right. No waiver of any of the Obligations shall be enforceable against Secured Party unless in writing
and signed by an officer of Secured Party, and unless it expressly refers to the provision affected; any such waiver shall be limited
solely to the specific event waived.


(b)                
All rights granted Secured Party hereunder shall be cumulative and shall be supplementary
of and in addition to those granted or available to Secured Party under any other agreement with respect to the Obligations or
under applicable law and nothing herein shall be construed as limiting any such other right.


7.                  
Termination. This Agreement shall continue
in full force and effect until all Obligations shall have been paid and satisfied in full.


8.                  
Applicable Law and Consent to Non-Exclusive New York Jurisdiction.


(a)                
This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without giving effect to the conflicts of laws principles thereof other than Sections 5-1401 and 5-1402 of the General
Obligations Law of such State.


(b)                
Each of Mako and Secured Party (together, the “Parties” and individually,
a “Party”) hereby irrevocably submits to the jurisdiction of the state and federal courts sitting in The City
of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or other proceeding,
any claim that it is not personally subject to the jurisdiction of any such court or that such court, action or other proceeding
is improper or is an inconvenient venue for such proceeding. Final non-appealable judgment against any Party in any such action,
suit or other proceeding shall be conclusive and may be enforced in any jurisdiction by suit on the judgment. Nothing contained
in this Agreement shall affect the right of either Party to commence legal proceedings in any court having jurisdiction, or concurrently
in more than one jurisdiction, or to serve process, pleadings and other legal papers upon the other Party in any manner authorized
by the laws of any such jurisdiction. Each Party irrevocably waives, to the fullest extent permitted by applicable law, any objection
which it may now or hereafter have to the laying of venue of any action, suit or other proceeding arising out of or relating to
this Agreement, brought in the courts of the State of New York or in the United States District Court for the Southern District
of New York, and any claim that any such action, suit or other proceeding brought in any such court has been brought in an inconvenient
forum.



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(c)                
Each Party hereby waives any and all rights to demand a trial by jury in any action, suit
or other proceeding arising out of this Agreement or the transactions contemplated by this Agreement.


(d)                
To the extent that the Parties may, in any suit, action or other proceeding brought in any
court arising out of or in connection with this Agreement, be entitled to the benefit of any provision of law requiring any Party,
as applicable, in such suit, action or other proceeding to post security for the costs of any other Party, as applicable, or to
post a bond or to take similar action, the Parties hereby irrevocably waive such benefit, in each case to the fullest extent now
or hereafter permitted under any applicable laws.


9.                  
Additional Definitions. As used herein:


(a)                
All terms used herein which are defined in Article 1 or Article 9 of the UCC shall have the
meanings given therein unless otherwise defined in this Agreement. All references to the plural herein shall also mean the singular
and to the singular shall also mean the plural unless the context otherwise requires. All references to Mako and Secured Party
pursuant to the definitions set forth in the recitals hereto, or to any other person herein, shall include their respective successors
and assigns. The words “hereof”, “herein”, “hereunder”, “this Agreement” and words
of similar import when used in this Agreement shall refer to this Agreement as a whole and not any particular provision of this
Agreement and as this Agreement now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced. The word “including” when used in this Agreement shall mean “including, without limitation”.
The words “it” or “its” as used herein shall be deemed to refer to individuals and to business entities.
Capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Facility Agreement.


“Intellectual
Property” means any intellectual property, in any medium, of any kind or nature whatsoever, now or hereafter owned or
acquired or received by Mako or in which Mako now holds or hereafter acquires or receives any right, interest or license, and shall
include, in any event, any copyright rights, copyright applications, copyright registrations and like protections in each work
of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including
improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service
marks and any applications therefor, whether registered or not, and the goodwill of the business of Mako connected with and symbolized
thereby, know-how, operating manuals, inventions, formulae, processes, gene sequences, cell lines, assays, biological materials,
compounds, compound libraries, research, clinical and commercial compounds derived from such libraries, along with the associated
active pharmaceutical ingredients and related formulations (other than Inventory), new drug applications and investigational new
drug applications or other regulatory filings relating to any drugs or compounds, trade secret rights, rights to unpatented inventions,
and any claims for damage by way of any past, present, or future infringement of any of the foregoing, and any licenses to use
any of the foregoing.



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“Obligations”
means:


(1)              
the full and prompt payment by Mako of all of its obligations under the Financing Documents;


(2)              
any and all sums advanced in accordance with applicable law by Secured Party in order to preserve
the Collateral or to preserve the Secured Party’s security interest in the Collateral; and


(3)              
in the event of any proceeding for the collection or enforcement of any obligations or liabilities
of Mako referred to in (1) and (2) above, the reasonable and documented out-of-pocket expenses of re-taking, holding, preparing
for sale, selling or otherwise disposing of or realizing on the Collateral, or of any other exercise by Secured Party of its rights
hereunder, together with reasonable and documented out-of-pocket attorneys’ fees and court costs.


“Person”
or “person” shall mean any individual, sole proprietorship, partnership, corporation limited liability company,
limited liability partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other
entity or any government or any agency or instrumentality or political subdivision thereof.


“UCC”
shall mean the Uniform Commercial Code as in effect in the State of New York and any successor statute, as in effect from time
to time (except that terms used herein which are defined in the Uniform Commercial Code as in effect in the State of New York on
the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute); provided,
however, that if, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of Secured Party’s
security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State
of New York, the term “UCC” shall mean the Uniform Commercial Code (including the Articles thereof) as in effect at
such time in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority
and for purposes of definitions related to such provisions.


10.                
Notices.
Any notice, request or other communication to be given or made under this Agreement shall be in writing. Such notice, request or
other communication shall be deemed to have been duly given or made when it shall be delivered by hand, courier (confirmed by facsimile),
or facsimile or electronic mail (with a hard copy delivered within two (2) Business Days) to the Party to which it is required
or permitted to be given or made at such Party’s address specified below or at such other address as such Party shall have
designated by notice to the other Parties.



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For Mako:


with a courtesy copy to:


For the Secured Party:


/o Deerfield Management Company, L.P.

780 Third Avenue, 37th Floor

New York, NY 10017

Attention: Structured Products


with a courtesy copy to:


Katten Muchin Rosenman LLP

575 Madison Avenue

New York, New York 10022-2585

Attention: Mark I. Fisher

Facsimile: (212) 894-5877


11.              
General. 


(a)                
This Agreement shall be binding upon the assigns or successors of Mako and shall inure to
the benefit of and be enforceable by Secured Party and its successors, transferees and assigns.


(b)                
This Agreement contains the entire understanding of the Parties with respect to the matters
covered thereby and supersedes any and all other written and oral communications, negotiations, commitments and writings with respect
thereto. The provisions of this Agreement may be waived, modified, supplemented or amended only by an instrument in writing signed
by the authorized officer of each Party.


(c)                
If any provision contained in this Agreement shall be invalid, illegal or unenforceable in
any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby. The Parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provision.


(d)                
This Agreement and any document, certificate or statement delivered pursuant thereto or in
connection therewith shall be considered to have been relied upon by the Parties and shall survive the execution and delivery of
this Agreement regardless of any investigation made by any other Party or on its behalf, and shall continue in force until the
Obligations shall have been fully paid be deemed to have waived, by reason of purchasing the Notes, any default that may arise
by reason of such representation or warranty proving to have been false or misleading, notwithstanding that the Secured Party may
have had notice or knowledge that such representation or warranty was false or misleading on the date hereof. 



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(e)                
Neither the failure of, nor any delay on the part of, any Party in exercising any right, power
or privilege hereunder, or under any agreement, document or instrument mentioned herein, shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder, or under any agreement, document or instrument
mentioned herein, preclude other or further exercise thereof or the exercise of any other right, power or privilege; nor shall
any waiver of any right, power, privilege or default hereunder, or under any agreement, document or instrument mentioned herein,
constitute a waiver of any other right, power, privilege or default or constitute a waiver of any default of the same or of any
other term or provision. No course of dealing and no delay in exercising, or omission to exercise, any right, power or remedy accruing
to the Secured Party upon any default under this Agreement, or any other agreement shall impair any such right, power or remedy
or be construed to be a waiver thereof or an acquiescence therein; nor shall the action of the Secured Party in respect of any
such default, or any acquiescence by it therein, affect or impair any right, power or remedy of the Secured Party in respect of
any other default. All rights and remedies herein provided are cumulative and not exclusive of any rights or remedies otherwise
provided by law. 


12.              
Releases of Collateral. 


(a)                
The Secured Party hereby agrees to promptly upon the request of Mako to release any Lien on
any Collateral granted to or held by the Secured Party under this Agreement upon the payment in full of the Obligations.


(b)The Secured
Party will, at Mako’s expense, promptly (x) deliver to Mako any Collateral in the Secured Party’s possession following
the release of such Collateral and (y) execute and deliver to Mako such documents as Mako may reasonably request to evidence the
release of such item of Collateral from the security interest granted under this Agreement.


[Signature Page Follows]


 


 


 


 


 


 


 


 


 


 



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IN WITNESS WHEREOF,
each of the Parties hereto has caused this Agreement to be executed and delivered by its duly authorized officer on the date first
set forth above.


 


OBLIGOR:


 


MAKO SURGICAL CORP.


 


 


	By: 	 	 
	Name:	 
	Title:	 
	 	 	 
	 	 	 
	SECURED PARTY:	 
	 	 	 
	DEERFIELD PRIVATE DESIGN FUND II, L.P.
	 	 	 
	By:	Deerfield Capital, L.P., General Partner
	By:	J. E. Flynn Capital LLC, General Partner
	 	 	 
	By: 	 	 
	Name:  James E. Flynn	 
	Title:    President	 
	 	 	 
	 	 	 
	SECURED PARTY:	 
	 	 	 
	DEERFIELD PRIVATE DESIGN INTERNATIONAL II, L.P.
	 	 	 
	By:	Deerfield Capital, L.P., General Partner
	By:	J. E. Flynn Capital LLC, General Partner
	 	 	 
	By: 	 	 
	Name:  James E. Flynn	 
	Title:    President	 


 


 


 


 


SECURITY AGREEMENT