EX-10.19 Asset Contribution Agreement



 





EXHIBIT 10.19




EXECUTION VERSION




ASSET CONTRIBUTION AGREEMENT




     THIS ASSET CONTRIBUTION AGREEMENT (this “Agreement”) is made and entered into this
17th day of December, 2004, by and among Z-KAT, INC., a Florida corporation (“Z-KAT”),
and MAKO Surgical Corp., a Delaware corporation (“Company”).



W I T N E S S E T H




     WHEREAS, Z-KAT is the owner of One Hundred (100) shares of common stock in Company, par value
$0.001 per share (the “Common Stock”), which represents all the issued and outstanding equity
securities of Company;



     WHEREAS, Z-KAT is the owner of all right, title and interest in and to the assets described on
Schedule 2.1 hereto (the “Assets”), such assets being substantially all of the operating
assets (but not all intellectual property assets) of Z-KAT currently used by Z-KAT in the MAKO
Business (as defined below);



     WHEREAS, Z-KAT, as owner of all right, title, and interest in certain other intangible assets,
including certain patents, patent applications, trade secrets and copyrights (the “Z-KAT Patent
Rights”) and as licensee of patents, patent applications, trade secrets and copyrights from certain
third-party licensors (the “Z-KAT License Rights”, together with the Z-KAT Patent Rights, the
“Necessary IP Rights”), has developed and employed the Necessary IP Rights in the business of
orthopedic surgery, which includes, without limitation, the preservation, restoration, development,
repair and correction of the musculoskeletal system and associated structures, including, without
limitation, the spine and neck, but which expressly excludes non-bone oncology, blood vessels and
vital organs, neurology (which is the medical specialty concerned with the brain, spinal cord and
nervous system), non-spine neurosurgery, cranial neurosurgery, ENT and otolaryngology (the “MAKO
Business”);



     WHEREAS, Z-KAT desires to contribute and transfer the Assets to Company and to exclusively and
irrevocably license and/or sublicense (as the case may be) the Necessary IP Rights to Company, and
Company desires to acquire the Assets from Z-KAT and license and/or sublicense (as the case may be)
the Necessary IP Rights from Z-KAT, to allow the Company to own and operate the MAKO Business, in
exchange for the issuance of certain capital stock of the Company, all pursuant to this Agreement
as hereinafter provided; and



     WHEREAS, the contribution and transfer of the Assets and the licensure of the Necessary IP
Rights are a necessary precondition to the capitalization and funding of the Company through its
anticipated sale and transfer of its Series A convertible preferred stock, par value $0.001 per
share (the “Series A Convertible Preferred Stock”) with cash proceeds of not less than Two Million
Dollars (the “Series A Financing”).



      



      





 









 








Agreement




     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 hereby agree as follows:



1. GENERAL DEFINITIONS. For purposes of this Agreement, the following terms shall have the
respective meanings set forth below:



     1.1 “Governmental Authority” shall mean any and all foreign, federal, state or local
governments, Indian tribes, governmental institutions, public authorities and governmental entities
of any nature whatsoever, and any subdivisions or instrumentalities thereof, including, but not
limited to, departments, boards, bureaus, commissions, agencies, courts, administrations and
panels, and any divisions or instrumentalities thereof, whether permanent or ad hoc now existing.



     1.2 “Governmental Requirement” shall mean any and all laws (including, but not limited to,
applicable common law principles), statutes, ordinances, codes, rules, regulations,
interpretations, guidelines, directions, orders, judgments, writs, injunctions, decrees, decisions
or similar items or pronouncements, promulgated, issued, passed or set forth by any Governmental
Authority applicable to Z-KAT or its MAKO Business.



     1.3 “Liabilities” shall mean all liabilities, obligations, losses, expenses, damages,
indebtedness, claims or other amounts owed by a Person.



     1.4 “Person” shall mean any natural person, any Governmental Authority and any entity the
separate existence of which is recognized by any Governmental Authority or Governmental
Requirement, including, but not limited to, corporations, partnerships, joint ventures, joint stock
companies, trusts, estates, companies and associations, whether organized for profit or otherwise.



     1.5 “Tax” and “Taxes” shall mean any and all income, excise, franchise or other taxes and all
other charges or fees imposed or collected by any Governmental Authority or pursuant to any
Governmental Requirement, and shall also include any and all penalties, interest, deficiencies,
assessments and other charges with respect thereto.



     1.6 “Affiliate” of any Person shall mean any Person controlling, controlled by or under common
control with such Person.



2. CONTRIBUTION OF THE ASSETS; AGREEMENT TO LICENSE; CONTRIBUTION DATE.



     2.1 Contribution. Z-KAT hereby sells, assigns, transfers and delivers to Company all
right, title and interest in and to the Assets (as set forth on Schedule 2.1 hereto), free
and clear of any liens or encumbrances of any nature whatsoever (except for any liens, encumbrances
or obligations, if any, expressly assumed by Company hereunder). Company hereby takes delivery from
Z-KAT of the Assets along with the Licenses (described below), and



      



      






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in consideration therefore, shall issue to Z-KAT the Contribution Consideration (as
hereinafter defined) set forth in Section 3 below.



     2.2 Delivery of Assets and Transfer Documents. On or prior to the Contribution Date
(hereinafter defined in Section 2.5), Z-KAT shall have taken all steps necessary to put
Company in possession of the Assets, free and clear of any liens or encumbrances of any nature
whatsoever (except for liens, encumbrances or obligations, if any, expressly assumed by Company
hereunder), and have delivered to Company (i) duly executed assignments, as necessary, in form and
substance acceptable to Company and in recordable form as appropriate, (ii) all equipment,
furniture, fixture and other tangible assets utilized in the MAKO Business by Z-KAT, and (iii) such
other duly executed transfer and release documents which Company has reasonably requested to
evidence the transfer of the Assets to Company.



     2.3 Excluded Assets. The Assets shall not include any or all of the assets listed on
Schedule 2.3 hereto (collectively, the “Excluded Assets”).



     2.4 Grant of Licenses. Z-KAT agrees to grant (i) licenses for the Z-KAT Patent Rights
and (ii) sublicenses for Z-KAT License Rights which constitute all the Necessary IP Rights
(collectively, the “Licenses”) to Company on the terms and subject to the conditions of that
certain License Agreement, dated as the date hereof, by and between Z-KAT and Company, in the form
attached hereto as Exhibit A (the “License Agreement”).



     2.5 Contribution; Contribution Date. Subject to the terms and conditions herein
contained, the consummation of the transactions referred to in this Section 2 (the
“Contribution”) shall take place in the Company’s principal office on December 17, 2004, or such
other date and/or time as the parties may mutually determine (the “Contribution Date”); provided,
however, that to the extent it is not reasonably possible to complete the transfer of particular
assets hereunder (whether tangible or intangible) by that date due to required third party consents
or approvals or other matters beyond Z-KAT’s control, Z-KAT shall use its commercially reasonable
best efforts to complete the transfer as soon as reasonably practical thereafter and in the
meantime shall make appropriate arrangements to permit the Company to utilize such assets (at no
charge to the Company).



3. CONTRIBUTION CONSIDERATION.




     3.1 Contribution Consideration. The aggregate consideration for the Assets and
Licenses hereunder shall be the delivery by Company to Z-KAT of (i) Four Million Two Hundred
Seventy One Thousand Nine Hundred (4,271,900) shares of Common Stock (the “Retained Common Stock”);
(ii) One Million Seven Hundred Forty Eight Thousand Seven Hundred Forty Six (1,748,746) shares of
the Company’s Series A Convertible Preferred Stock (along with Five Hundred Seventy Seven Eighty
Four (577,084) warrants to purchase the Common Stock, the “Exchanged Series A Stock”); and Two
Hundred Fifty Thousand (250,000) shares of the Company’s Series A Convertible Preferred Stock
(without any warrants, the “Retained Series A Stock”, together with the Retained Common Stock and
the Exchanged Series A Stock, the “Contribution Consideration”), plus the assumption of the Assumed
Liabilities (as defined below).



      



      






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     3.2 Assumed Liabilities. The Company hereby assumes the liabilities and obligations
of Z-KAT that are listed and described on Schedule 3.2 hereto (the “Assumed Liabilities”)
and no others.



     3.3 Excluded Liabilities and Obligations.




          (a) Except as expressly set forth in Section 3.2 above, Company shall not assume and
shall not be liable or responsible for any Liability of the MAKO Business, Z-KAT or any Affiliate
of Z-KAT, or any claim against any of the foregoing parties, of any kind, whether known or unknown,
contingent, absolute or otherwise (collectively, the “Excluded Liabilities”), including, without
limitation, any Liabilities or claim for Liabilities (whether in contract, in tort or otherwise,
and whether or not successful): (i) of or against Z-KAT or not related in any way to the MAKO
Business or Assets of any of them; (ii) related to any liens, obligations or encumbrances of any
nature whatsoever against or in any way related to the Assets or the MAKO Business which have not
been expressly assumed by the Company hereunder to the extent any such Liability is either incurred
by a Z-KAT or arises in connection with any action, omission or event occurring on or prior to the
Contribution Date; (iii) related to the Taxes of Z-KAT; and (iv) all Bridge Loan Debt (as defined
in Section 7.1).



          (b) Except for the Assumed Liabilities expressly provided for in Section 3.2 hereof,
Z-KAT shall forever defend, indemnify and hold harmless Company (including its directors, officers,
employees, agents and holders of Company securities and its and their respective successors and
assigns, heirs, executors and administrators) from and against any and all Liabilities (including
incidentals and consequential damages), costs and expenses (including court costs and reasonable
attorney’s fees) related to or arising from the MAKO Business prior to the Contribution Date.



4. REPRESENTATIONS AND WARRANTIES OF Z-KAT. Z-KAT hereby represents and warrants to the
Company as follows:



     4.1 Organization. Z-KAT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida, and is duly authorized, qualified and licensed
under all applicable Governmental Requirements known to Z-KAT to carry on its respective business
in the places and in the manner as now conducted.



     4.2 Approvals. The shareholders of Z-Kat and Z-Kat’s Board of Directors have each
approved the Contribution of the Assets and Necessary IP Rights to the Company pursuant to this
Agreement. Z-KAT has obtained all necessary approvals from third party licensors to sublicense the
Z-KAT License Rights to Company hereunder.



     4.3 Effect of Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not (i) result in any breach of any of
the terms or conditions of, or constitute a default under, the Charter or Bylaws or other governing
documents of Z-KAT, or any commitment, mortgage, note, bond, debenture, deed of trust, contract,
agreement, license or other instrument or obligation to which Z-KAT is now a party or by which
Z-KAT or any of its properties, Assets or Z-KAT License Rights may be bound or affected; (ii)
result in any violation of any material Governmental Requirement; (iii)





      



      



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cause Company to lose the benefit of any right or privilege included in the Assets, including
without limitation the HSS Agreement (as defined in Schedule 2.1 hereto); (iv) relieve any
Person of any obligation (whether contractual or otherwise) or enable any Person (x) to terminate
any such obligation or any right or benefit enjoyed by Z-KAT or (y) to exercise any right under any
agreement in respect of the Assets, the Z-KAT License Rights or the MAKO Business, including
without limitation the HSS Agreement; or (v) require notice to or the consent, authorization,
approval or order of any Person not previously obtained, including without limitation with respect
to the HSS Agreement.



     4.4 Properties, Assets and Leasehold Estates. Z-KAT has good and marketable title to
the Assets, free and clear of all mortgages, liens, pledges, conditional sales agreements, charges,
easements, covenants, assessments, options, restrictions and encumbrances of any nature whatsoever.
All leases pursuant to which real property is leased in connection with the MAKO Business are in
good standing, valid and enforceable with respect to their terms. Z-KAT is the owner, without
material restriction or royalty payments thereon, of all Z-KAT Patent Rights included in the
License Agreement and has all rights with respect to any Z-KAT License Rights included in the
License Agreement, including the right in each case to license or sublicense such intellectual
property to the Company. To the best of Z-KAT’s knowledge, the Z-KAT Patent Rights and the Z-KAT
License Rights do not infringe any intellectual property rights of a third party.



     4.5 Solvency. Z-KAT has delivered to counsel for the investors in the Series A
Financing a pro forma unaudited balance sheet immediately following the Series A Financing. Such
balance sheet discloses that the fair market value of its assets shall exceed its liabilities
following the contemplated Series A Financing. Z-KAT does not have any non-disclosed liability or
obligation of any nature (whether absolute, accrued or contingent or otherwise) which is in excess
of amounts shown or reserved therefor in such balance sheet other than liabilities or obligations
incurred after the date of such balance sheet reasonably incurred in the ordinary course of
business and consistent with past practice.



     4.6 Authorization. Z-KAT has full legal right, power and authority to enter into and
deliver this Agreement and to consummate the transactions set forth herein and to perform all the
terms and conditions hereto to be performed by it. The execution and delivery of this Agreement by
Z-KAT and the performance by it of the transactions contemplated herein have been duly and validly
authorized by all requisite corporate action of Z-KAT, and this Agreement has been duly and validly
executed and delivered by Z-KAT and is the legal, valid and binding obligation of Z-KAT,
enforceable against it in accordance with its terms, except as limited by applicable bankruptcy,
moratorium, insolvency or other similar laws affecting generally the rights of creditors or by
principles of equity.



5. CONDITIONS TO CONTRIBUTION. The obligations of the Company to consummate the
transactions to be performed by it in connection with the Contribution is subject to satisfaction
of the following conditions: (a) the representations and warranties set forth in Section 4
hereof shall be true and correct in all material respects at and as of the Contribution Date; and
(b) all actions and approvals to be taken by Z-KAT in connection with consummation of the
transactions contemplated hereby and all certificates, opinions, instruments, and other documents
required to effect the transactions contemplated hereby will be satisfactory in form



      



      








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and substance to the Company. The Company may waive any condition specified in this Section
5 if it executes a writing so stating at or prior to the Contribution.



6. NATURE OF STATEMENTS AND SURVIVAL OF

INDEMNIFICATIONS, GUARANTEES, REPRESENTATIONS AND WARRANTIES OF Z-KAT. All
indemnifications, guarantees, covenants, agreements, representations and warranties made by Z-KAT
hereunder or pursuant hereto or in connection with the transactions contemplated hereby shall
survive the Contribution but only for a period of three years after the Contribution Date,
except that Sections 4.1 and 4.6 shall survive in perpetuity.



7. SPECIAL COVENANTS.




     7.1 Exchange of Exchanged Series A Stock. The parties agree that the Company shall
issue the certificate representing the Exchanged Series A Stock (the “Z-KAT Certificate”) in escrow
pending execution and delivery of the Exchange Agreement (as described below). Thereafter, Z-KAT
shall transfer the respective portion of the Exchanged Series A Stock, and the Company shall issue
certificated shares, to each participating holder of Z-KAT bridge note debt (each a “Bridge Note
Holder”) in exchange for cancellation of all outstanding principal and accrued and unpaid interest
of such Bridge Note Holder’s bridge loan (collectively, the “Bridge Note Debt”, all in accordance
with the terms and conditions of that certain Exchange Agreement, by and among Z-KAT, the Company
and each such Bridge Note Holder, contemplated for closing immediately following the Contribution
Date (the “Exchange Agreement,” which is expressly incorporated herein by reference). Z-KAT agrees
and covenants that the Exchanged Series A Stock shall not be transferred to any third party other
than the Bridge Note Holders. Z-KAT agrees that the Company shall cancel the Z-KAT Certificate upon
consummation of the Exchange Agreement.



     7.2 Liquidation of Retained Series A Stock. Z-KAT acknowledges that the Retained
Series A Stock shall be transferred solely for use in satisfaction of the Excluded Liabilities
(exclusive of the Bridge Note Debt) (collectively, the “Bone Fide Debt”), and Z-KAT covenants and
warrants to transfer the Retained Series A Stock (including any and all proceeds thereof) solely
for the purpose of satisfying such Bone Fide Debt (in each case, a “Transfer”). Any Transfer
thereof shall be effective only if (i) made (A) to a bone fide creditor of Z-KAT holding Bone Fide
Debt (each, a “Bone Fide Creditor”) or (B) to a Person (which shall be an “accredited investor”
within the meaning of SEC Rule 501 of Regulation D) pre-approved in writing by the Company, the
proceeds of which shall be immediately thereafter transferred to a Bone Fide Creditor; (ii) such
Transfer complies with Article III of the Stockholders Agreement by and among Z-KAT, the Company
and certain stockholders of the Company, contemplated for execution within five (5) business days
following the Contribution Date (the “Stockholders Agreement,” which is expressly incorporated
herein by reference), except that the option of each Investor Stockholder (as such term is defined
in the Stockholders Agreement) shall run for ten (10) business days in connection with a Transfer
hereunder; and (iii) each permitted transferee hereunder enters into an agreement or instrument of
accession to the Stockholders Agreement whereby such assignee shall (x) become an “Additional
Stockholder” under the Stockholders Agreement and (y) agree to become and remain bound by the
restrictions and provisions of the Stockholders Agreement as and to the same extent as the other
Stockholders (as defined in the Stockholders Agreement) party hereto.



      



      








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     7.3 Cash Advance Repayment and Use Thereof. The parties acknowledge that Z-KAT and
the Company are parties to that certain letter agreement, dated November 3, 2004 (the “Cash Advance
Letter”), pursuant to which Z-KAT has made certain cash payments on behalf of the Company for
which, pursuant to the Cash Advance Letter, the Company is obligated to make repayment upon
consummation of the Series A Financing. Z-KAT and the Company hereby agree and covenants that the
Company shall transfer Two Hundred Fifty Thousand Dollars ($250,000) to Z-KAT upon consummation of
the Series A Financing (the “Cash Advance Repayment”), and that such Cash Advance Repayment, in
conjunction with the issuance to Z-KAT of the Retained Series A Stock, shall be in full
satisfaction of all amounts due pursuant to the Cash Advance Letter as of the Contribution Date.
Furthermore, Z-KAT hereby covenants that the proceeds of the Cash Advance Repayment shall only be
transferred to a Bone Fide Creditor holding Bone Fide Debt, absent the written consent of the
Company.



     7.4 Excluded Liabilities. Notwithstanding the other covenants, promises and
agreements contained in this Section 7, Z-KAT hereby covenants and agrees to use its
reasonable best efforts to satisfy in full the Excluded Liabilities.



8. ASSIGNMENT OF CONTRACTS. Notwithstanding any other provision of this Agreement, nothing
in this Agreement or any related document shall be construed as an attempt to assign (i) any
contract which, as a matter of law or by its terms, is nonassignable without the consent of the
other parties thereto unless such consent has been given, or (ii) any contract or claims as to
which all of the remedies for the enforcement thereof enjoyed by a Z-KAT would not, as a matter of
law or by its terms, pass to Company as an incident of the transfers and assignments to be made
under this Agreement. In order, however, that the full value of every contract and claim of the
character described in clauses (i) and (ii) above and all claims and demands on such contracts may
be realized for the benefit of Company, Z-KAT, at the request and expense and under the direction
of Company, shall for a period of three (3) years after the Contribution Date, take all such
reasonable action and do or cause to be done all such things as, in the opinion of Company, will be
necessary or proper in order that the obligations of Z-KAT under such contracts may be performed in
such manner that the value of such contract will be preserved and will inure to the benefit of
Company, and for, and to facilitate, the collection of the monies due and payable and to become due
and payable thereunder to Company in and under every such contract and claim incurred after the
Contribution. Z-KAT shall promptly pay over to Company all monies collected by or paid to it in
respect of every such contract, claim or demand to the extent such monies are earned by the Company
on or after the Contribution Date. Nothing in this Section 8 shall relieve Z-KAT of its
obligation to use its best efforts to obtain any consents required for the transfer of the Assets
(and all rights thereunder) and the license and sublicense of the Necessary IP Rights to Company.



9. SPECIAL PROVISIONS REGARDING EMPLOYEES OF Z-KAT. The parties hereby agree and
acknowledge that, pursuant to the Cash Advance Letter, Z-KAT has provided its employees on an
exclusive basis to the Company, and that effective of the Contribution Date, all such employees
shall continue to provide exclusive service to the Company (which shall be solely responsible for
compensation and benefits of all such employees), notwithstanding that all such employees shall
remain employees of Z-KAT through December 31, 2004 and shall become employees of the Company,
effective January 1, 2005 (the “Transition Arrangement”). The contemplated, non-binding roster of
transitioning employees



      



      





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is as set forth in Schedule 9 hereto. The parties acknowledge that the Transition
Arrangement is meant solely for ease of payroll administration and other human resources
consideration and the parties hereby covenant to use mutual best efforts to effectuate the smooth
implementation of the Transition Arrangement in accordance with purpose set forth in this
Section 9. It is the intention of Company, and Z-KAT hereby acknowledges and agrees with
such position, that any employee (whether of Z-KAT or otherwise) that Company hires after the
Contribution Date will be a new employee of Company as of the date of hire and shall be an employee
at will of Company unless otherwise agreed in writing between Company and such employee.



10. FURTHER ACTIONS. From time to time, at the request of any party hereto, the other
parties hereto shall execute and deliver such instruments and take such action as may be reasonably
requested to evidence the transactions contemplated hereby. Notwithstanding the foregoing, Z-KAT
agrees and covenants to transfer, assign or otherwise deliver to Company all documentation
(including, without limitation, any regulatory submission documents, e.g. 510k submissions, CE Mark
technical files, etc. and regulatory clearances e.g., 510k clearances, EC examination certificates
for CE Mark) necessary or reasonably requested, based on any Governmental Requirement, for Company
to undertake and effectuate the MAKO Business.



11. GENERAL PROVISIONS.




     11.1 GOVERNING LAW; INTERPRETATION; SECTION HEADINGS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO CONFLICT-OF-LAWS RULES AS APPLIED IN DELAWARE. THE SECTION HEADINGS CONTAINED HEREIN ARE FOR
PURPOSES OF CONVENIENCE ONLY, AND SHALL NOT BE DEEMED TO CONSTITUTE A PART OF THIS AGREEMENT OR TO
AFFECT THE MEANING OR INTERPRETATION OF THIS AGREEMENT IN ANY WAY.



     11.2 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given when personally delivered, or forty-eight (48) hours after
sent by United States registered mail, first-class, postage prepaid or by confirmed facsimile
addressed to the Company at its address.



     11.3 Severability. Should any provision of this Agreement be held unenforceable or
invalid, then the parties hereto agree that such provision shall be deemed modified for purposes of
performance of this Agreement to the extent necessary to render it lawful and enforceable, or if
such a modification is not possible without materially altering the intention of the parties
hereto, then such provision shall be severed herefrom for purposes of performance of this
Agreement.



     11.4 Entire Agreement. This Agreement and the License Agreement set forth the entire
agreement and understanding of the parties hereto with respect to the transactions contemplated
hereby and supersedes all prior agreements, arrangements and understandings related to the subject
matter hereof.



     11.5 Binding Effect; Assignment. All the terms, provisions, covenants and



      



      





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conditions of this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, executors, administrators,
representatives, successors and assigns. This Agreement and the rights and obligations of the
parties hereto shall not be assigned or delegated by any party hereto without the prior written
consent of the other parties hereto.



     11.6 Execution and Delivery; Counterparts. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto and such execution and
delivery shall be considered valid, binding and effective for all purposes. At the request of any
party hereto, all parties hereto agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.



[THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]




      



      






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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 
	 

	 	COMPANY
	 
	 	 
	ATTEST:

	 	MAKO SURGICAL, CORP.
	 
	 	 
	/s/ Menashe Frank

	 	By: /s/ Maurice R. Ferré
	 

	 	 
	Secretary:

	 	Name: Maurice R. Ferré

Title: President
	 
	 	 
	 
	 	 
	 

	 	Z-KAT
	 
	 	 
	 

	 	Z-KAT, INC.
	 
	 	 
	ATTEST:
	 	 
	 
	 	 
	/s/ Fritz LaPorte

	 	By: /s/ Maurice R. Ferré
	 

	 	 
	Secretary:

	 	Name: Maurice R. Ferré

Title: President






[Corporate Seal]




 




 




 




 




SIGNATURE PAGE TO ASSET CONTRIBUTION AGREEMENT




      



      



      



      






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SCHEDULE 2.1

LIST OF ASSETS




     (All terms used herein that are defined in the Agreement to which this Schedule is attached
have the same meaning herein as set forth in such Agreement.)



     The Assets shall consist of all assets of Z-KAT utilized solely or primarily in the MAKO
Business and all tangible and certain specified intangible assets utilized solely or primarily in
connection with the MAKO Business and to which Z-KAT has the right, title and interest, other than
the Excluded Assets listed on Schedule 2.3 hereto. The Assets specifically shall include, but not
be limited to (i) the names “MAKO Surgical,” “MAKO Robotic” and all derivations thereof, (ii) all
of the inventory, work-in-process, materials, furniture, fixtures, equipment, leasehold
improvements, leases, tooling, telephone numbers, warranties on assets, prepaid expenses, including
insurance, customer lists, drawings, software documentation, licenses and permits, books and
records (other than corporate minutes and stock records), marketing materials, noncompete
agreements, non-disclosure agreements, consulting agreements and employment agreements with
employees of Z-Kat engaged in the business or to be hired by the Company, contracts and contract
rights, including, without limitation, the Sponsored Research and Collaboration Umbrella Agreement
and addendum, by and between Z-KAT and Hospital for Special Surgery, as amended June 10, 2004 (the
“HSS Agreement”), inventions, copyrights, trademarks, trade names, service marks and service marks
pending (if any), corporate names, royalty agreements and other proprietary rights of Z-KAT used
primarily in the MAKO Business; and (iii) the following:



	 	 	 	 	 
	Deposits
	 	 	 	 
	Barrett Technologies — WAM Deposit
	 	$	39,750.00	 
	Barrett Technologies — WAM Deposit
	 	 	72,875.00	 
	Barrett Technologies — Wrist Deposit
	 	 	6,500.00	 
	 
	 	 	 
	Total Deposits
	 	$	119,125.00	 
	 
	 	 	 	 
	Prepaid Expenses
	 	 	 	 
	HSS Prepaid Services
	 	$	22,083.31	 
	 
	 	 	 	 
	Fixed Assets
	 	 	 	 
	R&D Equipment, net
	 	$	34,023.04	 
	Computer Equipment, net
	 	 	35,230.87	 
	Office Equipment & Furniture, net
	 	 	37,910.46	 
	 
	 	 	 
	Total Fixed Assets
	 	$	107,164.37	 






Note: The above balances are estimates through the closing date.




      



      






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SCHEDULE 2.3

EXCLUDED ASSETS




The stock ledger and corporate minute book of Z-KAT, as well as the following retained assets:



	 	 	 	 	 
	Cash (approximate)
	 	$	246,979.68	 
	Accounts Receivable
	 	 	104,278.55	 
	Due from Biomet
	 	 	40,835.25	 
	Inventory, net of reserve
	 	 	272,432.96	 
	Deposits
	 	 	1,003.65	 
	Prepaid Expenses
	 	 	26,935.35	 
	 
	 	 	 	 
	Fixed Assets
	 	 	 	 
	Manufacturing Equipment, net
	 	$	6,055.55	 
	Loan & Demo Equipment, net
	 	 	464.83	 
	Fee-Per-Use Equipment, net
	 	 	28,163.77	 
	Leasehold Improvements, net
	 	 	2,030.83	 
	R&D Equipment — on Loan, net
	 	 	34,386.46	 
	 
	 	 	 
	Total Fixed Assets
	 	$	71,101.44	 
	 
	 	 	 	 
	Patents & Licenses, net
	 	$	3,446,281.89	 
	Goodwill, net
	 	 	361,737.95	 
	Security Deposit
	 	 	8,259.26	 
	Deferred Software Development
	 	 	254,231.00	 
	Deferred R&D Costs
	 	 	205,799.92	 






Note: The above balances are estimates through the closing date.




      



      






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SCHEDULE 3.2


ASSUMED LIABILITIES




The Company shall be responsible for all costs and expenses relating to the MAKO Business arising
after the Contribution Date, including, without limitation, all obligations concerning employees as
set forth in Section 9 of the Agreement, and all obligations (including, without
limitation, lease and utility payments) associated with the offices in which the MAKO Business is
performed.



      



      






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SCHEDULE 9




TRANSITIONING EMPLOYEES




	 	 	 	 	 	 
	 
	 	Employee	 	 	Title	 
	 	Maurice Ferré

	 	 	President & Chief Executive Officer	 
	 	Rony Abovitz

	 	 	Chief Technology Officer	 
	 	Fritz LaPorte

	 	 	Chief Financial Officer	 
	 	Menashe Frank

	 	 	General Counsel	 
	 	Louis Arata, Ph.D.

	 	 	Director of Software Engineering	 
	 	Arthur Quaid, Ph.D.

	 	 	Director of Research & Development	 
	 	William Tapia

	 	 	Director of Regulatory Affairs	 
	 	Benjamin Hajaj

	 	 	Director of Operations / Quality Assurance	 
	 	Scott Illsley

	 	 	Application Team Leader	 
	 	Hyosig Kang, Ph.D.

	 	 	Haptic Systems Scientist	 
	 	Mark Leybzun

	 	 	Sr. Mechanical Engineer	 
	 	Dennis Moses

	 	 	Sr. Systems Software Engineer	 
	 	Jeetendra Bharadwaj

	 	 	Mechanical Engineer	 
	 	Prashant Chopra

	 	 	Application Software Engineer	 
	 	Viraj Alankar

	 	 	Systems Administrator	 
	 	Daniel Norona

	 	 	Accounting Manager	 
	 	Gerald Riley

	 	 	Document Control Manager	 
	 	Althea Brown-Walden

	 	 	Office Administrator	 
	 





      



      





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EXHIBIT A




LICENSE AGREEMENT




[ATTACHED]




      



      



      



      



      



      



      



      






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