EX-4.6 2ND Amended & Restated Registration Rights



 





Exhibit 4.6




EXECUTION COPY




 





SECOND AMENDED AND RESTATED




REGISTRATION RIGHTS AGREEMENT




BY AND AMONG




MAKO SURGICAL CORP.




AND




EACH OF THE INVESTORS

IDENTIFIED HEREIN AND THE ADDITIONAL INVESTORS

FROM TIME TO TIME PARTY HERETO




FEBRUARY 6, 2007




 







 









 








SECOND AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT




          THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is
entered into as of February 6, 2007 (the “Effective Date”), by and among (i) MAKO Surgical
Corp., a Delaware corporation (the “Company”), (ii) Z-KAT, Inc., a Florida corporation
(“Z-KAT”), (iii) Dana Mears, MD, Ph.D., an individual (“Dr. Mears”), Alastair
Clemow, Ph.D. MBA, an individual (“Dr. Clemow”), Maurice R. Ferré, MD, an individual (“Dr.
Ferré”) and Steven B. Brown, an individual (iv) each of the individuals and entities from time
to time identified as a “Series A Investor” in Exhibit A hereto, together with any
successors and/or, subject to Section 1.7 below, any transferees or assignees of such entity (each
individually, a “Series A Investor”, and collectively, the “Series A Investors”), (v) and
each of the individuals and entities from time to time identified as a “Series B Investor” in
Exhibit A hereto, together with any successors and/or, subject to Section 1.7 below, any
transferees or assignees of such entity (each individually, a “Series B Investor”, and
collectively, the “Series B Investors”), and (vi) and each of the individuals and entities
from time to time identified as a “Series C Investor” in Exhibit A hereto, together with any
successors and/or, subject to Section 1.7 below, any transferees or assignees of such
entity (each individually, a “Series C Investor”, and collectively, the “Series C
Investors”).




          WHEREAS, on December 17, 2004, the Company, Z-Kat, Dr. Mears and Dr. Clemow and the Series A
Investors entered into a Registration Rights Agreement (the “Original Registration Rights
Agreement”) with respect to registration of the Company’s Common Stock, par value $0.001 per
share (the “Common Stock”) and shares of the Company’s Series A Convertible Preferred
Stock, par value $0.001 per share (the “Series A Preferred Stock”);




          WHEREAS, on July 14, 2005, the Company, Z-Kat, Dr. Mears, Dr, Clemow, Dr. Ferré, the Series A
Investors and the Series B Investors amended and restated the Original Registration Rights
Agreement (the “Amended Registration Rights Agreement”) in connection with entering into
that certain Series B Stock Purchase Agreement (the “Series B Purchase Agreement”) with the
purchasers of shares of the Company’s Series B Convertible Preferred Stock, par value $0.001 per
share (the “Series B Preferred Stock”);




          WHEREAS, simultaneously with the execution of this Agreement on the Effective Date, the
Company is entering into that certain Series C Stock Purchase Agreement (the “Series C Purchase
Agreement”) with the purchasers of shares of the Company’s Series C Convertible Preferred
Stock, par value $0.001 per share (the “Series C Preferred Stock”);




          WHEREAS, it is a condition to the obligations of the purchasers under the Series C Purchase
Agreement that the Company, the Series A Investors, the Series B Investors and the Series C
Investors amend and restate the Amended Registration Rights Agreement in order to provide the
Series A Investors, the Series B Investors and the Series C Investors, together with any successors
and/or, subject to Section 1.7 below, any transferees or assignees of such entity (each
individually, an “Investor”, and collectively, the “Investors”), with certain
rights with respect to the registration of the Registrable Securities (as hereinafter defined) held
thereby; and




          WHEREAS, capitalized terms used in this Agreement and not otherwise defined shall have the
meanings ascribed to them in Article II hereof.




          NOW, THEREFORE, for and in consideration of the foregoing and of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:






 









 








ARTICLE I

REGISTRATION RIGHTS 




          1.1. Demand Registration Rights. Commencing at any time after the earlier of six (6)
months after either (i) the Qualified IPO or (ii) any of the Company’s securities are registered
under the Act, one or more Holders holding, in the aggregate, at least ten percent (10%) of all of
the Registrable Securities then held by all Holders (on an as-if-converted, Common Stock-equivalent
basis) (the “Post-Registration Initiating Holders”) may request registration for sale under
the Act of all or part of the Registrable Securities then held by them, provided that the aggregate
net offering price for any such registration will be at least Five Million Dollars ($5,000,000),
and upon such request, the Company shall promptly take the actions specified in Section
1.1.1. In addition, commencing at any time after the second anniversary of the Effective Date,
one or more Holders holding, in the aggregate, at least a majority of the Series A Preferred Stock,
Series B Preferred Stock and Series C Preferred Stock of the Company then held by all Holders (on
an as-if-converted, Common Stock-equivalent basis) (the “Preferred Initiating Holders” and,
together with the Post-Registration Initiating Holders, the “Initiating Holders”) may
request registration for sale under the Act of all or part of the Registrable Securities then held
by them, provided that the aggregate net offering price for any such registration will be at least
Twenty Five Million Dollars ($25,000,000), and, upon such request, the Company shall promptly take
the actions specified in Section 1.1.1.





          1.1.1. Demand Procedures. Within ten (10) Business Days after receipt by the
Company of a written registration request under Section 1.1 (which request shall specify the
number of Registrable Securities proposed to be registered and sold and the manner in which
such sale is proposed to be effected), the Company shall give written notice to all other
Holders of the proposed demand registration, and such other Holders shall have the right to
join in the proposed registration and sale upon written request to the Company (which request
shall specify the number of Registrable Securities proposed to be registered and sold) within
ten (10) Business Days after receipt of the Company’s notice. The Company shall thereafter, as
expeditiously as practicable, (i) file with the SEC under the Act a registration statement on
the appropriate form concerning all Registrable Securities specified in the demand request and
all Registrable Securities with respect to which the Company has received the written request
from the other Holders and (ii) use its best efforts to cause the registration statement to be
declared effective within no more than sixty (60) days (ninety (90) days if the registration
statement is reviewed by the SEC) after filing thereof. At the request of the Initiating
Holders requesting such registration, the Company shall cause each offering pursuant to Section
1.1 to be managed, on a firm-commitment basis, by a recognized regional or national underwriter
(x) in the case of a Qualified IPO, selected by the Company and approved by the participating
Holders, and (y) in the case of a registration and sale other than a Qualified IPO, selected by
a majority in interest of the Initiating Holders requesting such registration and approved by
the Company, in either case such approval not to be unreasonably withheld, conditioned or
delayed. All Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form. The Company shall
not be obligated to effect more than two (2) registrations requested by the Investors under
Section 1.1; provided, however, that any such request shall be deemed satisfied only when a
registration statement (A) covering all of the Registrable Securities (subject only to the
minimum offering price limitations set forth in Section 1.1 above) specified in notices
received as aforesaid, for sale in accordance with the method of disposition specified by the
Initiating Holders, (B) shall have become effective for a period of at least one hundred eighty
(180) days (or such shorter period until all of such Registrable Securities are sold), (C)
seventy five percent (75%) or more of all such
Registrable Securities shall have been sold pursuant to such registration statement, and (D)
the Company shall have complied




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with any and all of its other obligations with respect to such registration as provided in
Section 1.4 below.




          1.1.2. Delay by Company. The Company may postpone any demand registration under the
Act pursuant to Section 1.1 above if (i) the Company receives a request for registration under
Section 1.1 less than ninety (90) days preceding the anticipated effective date of a proposed
underwritten public offering of securities of the Company approved by the Company’s Board of
Directors (the “Board”) prior to the Company’s receipt of the request and, in such event, such
demand registration may be postponed until one hundred twenty (120) days after the effective date
of such proposed underwritten public offering, provided that the Company is actively employing in
good faith commercially reasonable efforts to cause such registration statement to become
effective; or (ii) the Board reasonably determines in good faith, and the Company furnishes to the
Initiating Holders requesting registration a certificate signed by the Chairman of the Board
stating, that effecting such a demand registration at such time would (A) have a material adverse
effect on a proposed sale of all (or substantially all) of the assets of the Company, or a merger,
reorganization or recapitalization materially affecting the capital structure or equity ownership
of the Company, (B) require premature disclosure of material information that the Company has a
bona fide business purpose for preserving as confidential and such premature disclosure would be
materially adverse to the Company, or (C) render the Company unable to comply with the requirements
under the Act or the Securities Exchange Act of 1934 (as amended, the “Exchange Act”), then
the Company shall have the right to defer the filing of such registration statement for a period of
not more than one hundred twenty (120) days after receipt of the request of the Initiating Holders
(the Company agrees that, as promptly as possible after the consummation, abandonment or public
disclosure of the circumstances that caused the Company to postpone the filing of the registration
statement, it will file such registration statement); provided, however, that the
Company may only delay a demand registration pursuant to this Section 1.1.2 for a period
not exceeding one hundred twenty (120) days (or until such earlier time as such transaction is
consummated or no longer proposed) and may only defer any such registration pursuant to this
Section 1.1.2 one (1) time during any period of twelve (12) consecutive months; provided,
further, that the Company shall not register any securities for its own account or that of any
other stockholder during such period (except for registrations of securities on Form S-4 or S-8 (or
any replacement or equivalent form)). The Company shall promptly notify in writing all Initiating
Holders requesting registration of any decision not to effect any such request for registration
pursuant to this Section 1.1.2, which notice shall set forth in reasonable detail the
reason for such decision (subject to the delivery of a confidentiality agreement or undertaking in
form and substance reasonably satisfactory to the Company) and shall include an undertaking by the
Company promptly to notify such Initiating Holders, and to take all other actions as required under
this Section 1.1, as soon as a demand registration may be effected.




          1.1.3. Reduction . If, in any underwritten demand registration initiated by any Initiating
Holders pursuant to Section 1.1, the managing underwriters advise the Company and the
Holders participating in the demand registration in writing that, in their reasonable and good
faith opinion, due to marketing factors the number of Equity Securities requested to be included in
such registration exceeds the number which can reasonably be sold in such offering, then the
Company shall include in such registration (i) first, any and all Registrable Securities
proposed to be sold by the Series B Investors and Series C Investors, allocated pro rata among such
Series B Investors and Series C Investors in proportion to the number of Registrable Securities
owned by them (on an as-if-converted, Common Stock-equivalent basis), (ii) second, any and
all Registrable Securities proposed to be sold by the Series A Investors who are not Series B
Investors or Series C Investors (collectively, the “Series A Only Investors”), allocated
pro rata
among such Series A Only Investors in proportion to the number of Registrable Securities owned
by them (on an as-if-converted, Common Stock-






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equivalent basis), (iii) third, any other Registrable Securities held by the Company;
and (iv) fourth, any other person or entity proposed for inclusion therein.




          1.1.4. Withdrawal. Holders participating in any demand registration pursuant to this
Section 1.1 may withdraw their requests for registration at any time before a registration
statement is declared effective with respect thereto, and the Company may withdraw such
registration statement if the net effect of the withdrawing Holders reduces the aggregate net
offering price for the registration below Five Million Dollars ($5,000,000) (and, if so withdrawn
by the Company, the Investors shall not be deemed to have requested a demand registration for
purposes of Section 1.1 hereof).




     1.2. Piggyback Registration Rights.



          1.2.1. Request. If, at any time or from time to time after the Effective Date, the
Company proposes to file a registration statement under the Act covering any Equity Securities of
the Company (whether to be sold by the Company or by one or more selling stockholders), other than
an offering pursuant to a demand registration under Section 1.1 or Section 1.3
hereof or an offering registered on Form S-8 or Form S-4 (or successor forms relating to employee
stock plans and certain business combinations), the Company shall, not less than thirty (30) days
prior to the proposed filing date of the registration statement, give written notice of the
proposed registration to each Holder, specifying in reasonable detail the proposed transaction to
be covered by the registration statement and, at the written request of any Holder delivered to the
Company within twenty (20) days after notice from the Company, shall include in such registration
and offering, and in any underwriting of such offering, all Registrable Securities as may have been
designated in the Holder’s request. The Company shall have no obligation to include Registrable
Securities owned by any Holder in a registration statement pursuant to this Section 1.2
unless and until such Holder (a) in connection with any underwritten offering, agrees to enter
into, as and to the same extent as all other participating holders of Equity Securities, an
underwriting agreement, a custody agreement or power of attorney and any other customary documents
required in an underwritten offering all in customary form and containing customary provisions, and
(b) shall have furnished the Company with all information and statements about or pertaining to
such Holder in such reasonable detail and on such timely basis as is reasonably and in good faith
determined by the Company to be legally required with respect to the preparation of the
registration statement.




          1.2.2. Reduction. If a registration in which any Holder has the right or is otherwise
permitted to participate pursuant to this Section 1.2 is (a) the Qualified IPO, the Company
may limit, to the extent so advised in writing by the underwriters in good faith that marketing
factors require such limitation, the amount of Equity Securities (including Registrable Securities)
to be included in the registration by the Company’s stockholders (including the Holders, but only
to the extent that (i) any and all Equity Securities held by stockholders and persons or entities
other than the Holders are entirely excluded therefrom and (ii) the Registrable Securities of the
Series B Investors or the Series C Investors are not limited until and only once the Registrable
Securities of the Series A Investors have been entirely excluded therefrom), or may exclude, to the
extent so advised in writing by the underwriters in good faith that marketing factors require such
exclusion, such Equity Securities (including Registrable Securities) entirely from the Qualified
IPO, or (b) an underwritten registration subsequent to the Qualified IPO and the managing
underwriters in good faith advise the Company in writing that in their opinion due to marketing
factors the number of securities requested to be included in such registration exceeds the number
which can reasonably be sold in such offering, the Company shall include in such registration (i)
first, the Equity Securities proposed to be issued and sold by the Company and the
Registrable Securities
proposed to be sold by the Series B Investors and the Series C Investors requesting
registration under this Section 1.2.1, allocated pro rata among the Company and such
participating Series B Investors and Series C Investors in proportion to the






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number of Equity Securities and Registrable Securities proposed to be sold by them on an
as-if-converted, Common Stock-equivalent basis (subject to the following sentence), (ii)
second, the Registrable Securities proposed to be sold by the Series A Only Investors
requesting registration under this Section 1.2.1, allocated pro rata among them in
proportion to the number of Registrable Securities proposed to be sold by them on an
as-if-converted, Common Stock-equivalent basis (subject to the following sentence), and (iii)
third, the Equity Securities held by any other stockholders or persons or entities proposing to
sell such Equity Securities pursuant to such registration. Notwithstanding anything to the
contrary herein, unless a registration pursuant to this Section 1.2 is part of the
Qualified IPO, in no event will the Registrable Securities to be sold by the Series B Investors
and the Series C Investors pursuant thereto be reduced below thirty percent (30%) of the total
amount of the Registrable Securities of the Series B Investors and the Series C Investors
requested for inclusion therein, allocated pro rata among the Series B Investors and the Series
C Investors in proportion to the number of Registrable Securities owned by them on an
as-if-converted, Common Stock-equivalent basis.



          1.3. Registration on Form S-3. Subject to the limitations set forth in Section
1.1.2 and, in each case, provided that the aggregate offering price for any such registration
would equal or exceed Five Hundred Thousand Dollars ($500,000), if, at any time after the Effective
Date, the Company is eligible to use Form S-3 under the Act (or any successor form) for secondary
sales of Equity Securities, one or more Post-Registration Initiation Holders, may require (by
written notice to the Company stating the number of Registrable Securities proposed to be sold and
the intended method of disposition) that the Company file a registration statement on Form S-3 (or
successor form) for a public sale of all or any portion of the Registrable Securities beneficially
owned by such Investor(s). At the written request of the Investor(s) requesting such registration,
such registration shall be a shelf registration permitting a delayed or continuous offering under
Rule 415 under the Act. Upon receiving such request, the Company shall promptly file a
registration statement on Form S-3 (or any successor form) to register under the Act for public
sale in accordance with the method of disposition specified in such request, the number of shares
of Registrable Securities specified in such request and shall otherwise carry out the actions
specified in Section 1.1.1 and 1.4. There shall be no limit on the aggregate
number of registrations on Form S-3 which may be requested and obtained by Investors pursuant to
this Section 1.3; provided, however, that the Company shall not be required
to effect more than two (2) such registrations during any six (6) consecutive month period.




          1.4. Registration Procedures. Whenever any Holder has requested that any Registrable
Securities be registered pursuant to Sections 1.1, 1.2 or 1.3 hereof, the
Company shall, as expeditiously as possible:





     (1) prepare and file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration statement to
become effective as soon as reasonably practicable thereafter; provided,
however, that, unless otherwise agreed by such Investor in writing, before filing
any such registration statement or prospectus or any amendments or supplements thereto
(excluding, however, any such documentation as may relate to the Qualified IPO in the event
that such Investor’s Registrable Securities have been excluded therefrom in the manner
provided in clause (i) of Section 1.2.2 above), the Company shall furnish counsel
for such Investor with copies of all such documents proposed to be filed;




     (2) prepare and file with the SEC such amendments and supplements to such registration
statement and prospectus used in connection therewith as may be necessary
to keep such registration statement effective until such Holder has completed the
distribution of its Registrable Securities as described in such registration statement;





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          (3) furnish to such Holder and its counsel such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus), and such other
documents as such Holder may reasonably request;




          (4) use best efforts to register or qualify such Registrable Securities under such
other securities or blue sky laws of such jurisdictions as such Investor requests (and to
maintain such registrations and qualifications), and to do any and all other acts and
things which may be necessary or advisable to enable such Investor to consummate the
disposition in such jurisdictions of such shares (provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where such would not
be required but for this Section 1.4(4), or (ii) subject itself to taxation in any
such jurisdiction);




          (5) notify such Holder, at any time when a prospectus relating thereto is required to
be delivered under the Act within the period that the Company is required to keep the
registration statement effective, of the happening of any event as a result of which the
prospectus included in any such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not misleading,
and promptly prepare, file and furnish to the Holder a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such shares, such
prospectus will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or, in light of the circumstances then
existing, necessary to make the statements therein not misleading;




          (6) cause all such Registrable Securities to be listed on securities exchanges, if
any, on which similar Equity Securities of the Company are then listed (or if not then
listed, on such exchanges as are requested by a majority of the participating Holders);




          (7) provide a transfer agent and registrar for all such Registrable Securities not
later than the effective date of such registration statement;




          (8) enter into such customary agreements and take all such other customary actions as
such Investor reasonably requests (and subject to its reasonable approval) in order to
expedite or facilitate the disposition of such Registrable Securities;




          (9) make available for inspection by such Holder, by any underwriter participating in
any distribution pursuant to such registration statement, and by any attorney, accountant
or other agent retained by such Investor or by any such underwriter, all financial and
other records, pertinent corporate documents, and properties (other than confidential
intellectual property) of the Company; and




          (10) in connection with an underwritten offering pursuant to a registration statement
filed pursuant to Section 1.1 hereof, enter into and perform its obligations under
an underwriting agreement in customary form and containing reasonable customary provisions,
including provisions for indemnification of underwriters and contribution, if so requested
by any underwriter.



          1.5. Suspension of Registration and Sales. Notwithstanding anything in this Agreement
to the contrary, if, after effectiveness of any registration statement (but prior to completion of
any sales thereunder) to which the rights of the Holders apply hereunder, the Board reasonably
determines in good faith, and the Company furnishes to the Holders participating in such
registration a certificate signed by the Chairman of the Board stating, that any of the events
described in clauses (A), (B) or (C) of Section






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1.1.2 has occurred, upon such notice by the Company, each such Holder participating in such
registration shall suspend any further sales under such registration statement until the Company
shall advise the Holder that such registration statement has been amended or that conditions no
longer exist which would require such suspension; provided, however, that the
Company may impose any such suspension for no more than thirty (30) days in each instance and no
more than two (2) times during any twelve (12) consecutive month period; provided,
further, that such thirty (30)-day periods shall be separated by at least seven (7)
calendar days. The Company shall extend the period during which the registration statement shall
be maintained effective pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when the Holders
participating in such registration shall have received copies of the supplemented or amended
prospectus necessary to resume such dispositions.




     1.6.
Registration Expenses.




     1.6.1. Investor Expenses. If, pursuant to Sections 1.1, 1.2 or
1.3 hereof, Registrable Securities are included in a registration statement, then the
Holder thereof shall pay all transfer taxes, if any, relating to the sale of its shares, and
any underwriting discounts or commissions or the equivalent thereof applicable to the sale of
its shares.




     1.6.2. Company Expenses. Except for the fees and expenses specified in Section
1.6.1 hereof and except as provided below in this Section 1.6.2, the Company shall
bear all costs, fees and expenses relating to or arising in connection with the registration of
Registrable Securities by the Company or any Holders pursuant to Sections 1.1,
1.2 or 1.3 hereof or otherwise incident to the Company’s performance of or
compliance with this Agreement, including, without limitation, all registration and filing
fees, other fees and expenses incurred for purposes of compliance with securities or blue sky
laws, underwriting discounts, fees and expenses (other than any Holder’s portion of any
underwriting discounts or commissions or the equivalent thereof as provided in Section
1.6.1), printing expenses, messenger and delivery expenses, and reasonable fees and
expenses of counsel for the Company and a single counsel for all Holders selling Registrable
Securities and all independent certified public accountants and other persons retained by the
Company.




     1.6.3.
Indemnity and Contribution.




     (a) To the fullest extent permitted by law, the Company agrees to indemnify and hold
harmless each Holder and each of its respective Affiliates, any underwriter participating
in such offering, each officer, partner, manager and director of such person, each person,
if any, who controls or may control such Investor or underwriter within the meaning of the
Act and each representative of any Investor serving on the Board (such Holder, Affiliate or
underwriter, its officers, partners, managers directors and representatives, and any such
other persons being hereinafter referred to individually as an “Investor Indemnified
Person” and collectively as “Investor Indemnified Persons”) from and against
all demands, claims, actions or causes of action, assessments, losses, damages, liabilities
(joint or several), costs, and expenses, including, without limitation, interest,
penalties, and reasonable attorneys’ fees and disbursements, asserted against, resulting
to, imposed upon or incurred by such Investor Indemnified Person, directly or indirectly
(hereinafter referred to in this Section 1.6.3 in the singular as a “claim” and in
the plural as “claims”), based upon, arising out of or resulting from (i) any breach of
representation or warranty made by the Company in any underwriting agreement, (ii) any
untrue statement (or alleged untrue statement) of a material fact contained in the
applicable registration statement, prospectus, offering circular or other document or
filing (or incorporated by reference therein) or any omission (or alleged omission) to
state therein a material fact necessary to make the statements made therein, in the light
of the circumstances under which they were made, not





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misleading, except insofar as such claim is based upon, arises out of or results from
information furnished to the Company in writing by such Investor Indemnified Person for use in
connection with the registration statement or (iii) any violation or alleged violation by the
Company of the Act, the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse each such Investor
Indemnified Persons for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such claim.




          (b) To the fullest extent permitted by law, each Holder shall, severally but not jointly, if
Registrable Securities held by such Holder are included among the Equity Securities as to which
such registration, qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, and each person who controls (as defined in the Act) the Company (the
Company, its directors, officers and each person who controls the Company being hereinafter
referred to individually as a “Company Indemnified Person” and collectively as “Company
Indemnified Persons”), against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances under which such statements were made, and shall reimburse the Company Indemnified
Persons, for any legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus, offering circular or other
document or filing in reliance upon and in conformity with written information furnished to the
Company by such Holder specifically for use therein; provided, however, that the
aggregate liability of such Holder under this Section 1.6.3(b) shall be limited to an
amount equal to the net proceeds from the offering received by such Holder.




          (c) The indemnification provisions set forth herein shall be in addition to any liability the
Company or any Holder may otherwise have to the Investor Indemnified Persons or Company Indemnified
Persons. The Company Indemnified Persons and Investor Indemnified Persons are hereinafter referred
to as “Indemnified Persons”. Promptly after receiving notice of any claim in respect of
which an Indemnified Person may seek indemnification under this Section 1.6.3, such
Indemnified Person shall submit written notice thereof to either the Company or the Investors, as
the case may be (sometimes being hereinafter referred to as an
“Indemnifying Person”). The omission of the Indemnified Person to so notify the Indemnifying Person of
any such claim shall not relieve the Indemnifying Person from any liability it may have hereunder
except to the extent that (a) such liability was caused or increased by such omission, or (b) the
ability of the Indemnifying Person to reduce such liability was prejudiced by such omission. In
addition, the omission of the Indemnified Person to so notify the Indemnifying Person of any such
claim shall not relieve the Indemnifying Person from any liability it may have otherwise than
hereunder. The Indemnifying Person shall have the right to undertake, by counsel or
representatives of its own choosing, the defense, compromise or settlement (without admitting
liability of the Indemnified Person) of any such claim asserted, such defense, compromise or
settlement to be undertaken at the expense of the Indemnifying Person, and the Indemnified Person
shall have the right to engage separate counsel, at its own expense, whom counsel for the
Indemnifying Person shall keep informed and consult with in a reasonable manner. In the event the
Indemnifying Person shall elect not to undertake such defense by its own representatives, the
Indemnifying Person shall give prompt written notice of such election to the Indemnified Person,
and the Indemnified Person shall undertake the defense, compromise or settlement (without






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admitting liability of the Indemnified Person) thereof on behalf of and for the
account of the Indemnifying Person by counsel or other representatives designated by the
Indemnified Person. Notwithstanding the foregoing, no Indemnifying Person shall be
obligated hereunder with respect to amounts paid in settlement of any claim if such
settlement is effected without the consent of such Indemnifying Person (such consent not to
be unreasonably withheld).




          (d) If the indemnification provided for in this Section 1.6.3 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Person, then the
Indemnifying Person, in lieu of indemnifying such Indemnified Person hereunder, shall
contribute, subject to any and all valid and enforceable limitations as herein contained,
to the amount paid or payable by such Indemnified Person as a result of any losses or
claims in such proportion as is appropriate to reflect the relative fault of the
Indemnified Person on the one hand and the Indemnifying Person on the other in connection
with the statements or omissions that resulted in such losses or claims as well as any
other relevant equitable considerations. The relative fault of the Indemnified Person and
the Indemnifying Person shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Person or by the
Indemnified Person and the parties’ relative intent, knowledge and access to information
and opportunity to correct or prevent such statement or omission. In no event will the
liability of any Holder for contribution exceed the net proceeds received by such Holder in
any sale of Registrable Securities to which such liability relates.



          1.7. Grant and Transfer of Registration Rights. Except for registration rights granted
by the Company after the date hereof (a) pursuant to any registration(s) effected on Form S-4 under
the Act (or any successor form) with respect to Equity Securities issued or issuable in connection
with any Board-approved business combination transaction(s), or (b) which are otherwise subordinate
in all respects to the rights of the Investors hereunder, the Company shall not grant any
registration rights to any other person or entity without the prior written consent of holders of
(i) sixty percent (60%) of all Registrable Securities then held by the Series A Investors, on an
as-if-converted, Common Stock-equivalent basis (the “Series A Majority”); (ii) sixty-seven
percent (67%) of all Registrable Securities then held by the Series B Investors, on an
as-if-converted, Common Stock-equivalent basis (the “Series B Majority”); and (iii) seventy
percent (70%) of all Registrable Securities then held by the Series C Investors, on an
as-if-converted, Common Stock-equivalent basis (the “Series C Majority”). Investors shall
have the right to transfer or assign the rights contained in this Agreement (x) to any Affiliate of
an Investor in connection with the transfer of any Registrable Securities permitted under the
Company’s Amended and Restated Stockholders Agreement dated February 6, 2007 (the “Stockholders
Agreement”); (y) to any third party transferee acquiring at least one (1) percent (1%) of all
Equity Securities then outstanding, on an as-if-converted, Common Stock-equivalent basis; or (z) in
the event that the transferring or assigning Investor owns less than one percent (1%) of all Equity
Securities on an as-if-converted, Common Stock-equivalent basis, to any third party transferee
acquiring all (but not less than all) of the Registrable Securities held by such Investor;
provided, however, that (X) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such transferee or assignee and
the Registrable Securities with respect to which such registration rights are being assigned and
(Y) such transferee or assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement.




          1.8. Information from Investor. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Article I with respect to the Registrable
Securities of
any selling Holder that such Holder shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of disposition of such
securities as shall be reasonably determined in good faith by the Company and its advisors to be
legally required to effect the registration of such Holder’s Registrable Securities.






9









 








          1.9 Rule 144 Requirements. Immediately after the date on which a registration
statement filed by the Company under the Act becomes effective, the Company shall undertake to make
and keep publicly available, and available to the Holders, such information, and take such action,
as is necessary to enable the Investors to make sales of Registrable Securities as and when such
sales are permitted pursuant to Rule 144 of the Act. The Company shall furnish to any Holder, upon
request, a written statement executed by the Company as to the steps it has taken to comply with
the current public information requirements of Rule 144 as and when, and within a reasonable time
prior to the first such date as, sales of Registrable Securities are available to such Investor in
accordance with such Rule.




          1.10 Sale of Preferred Stock to Underwriter. Notwithstanding any provision of this
Agreement to the contrary, in lieu of converting any shares of Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock prior to the filing of any registration statement filed
pursuant to this Agreement, the Holder of such shares may sell such shares of Series A Preferred
Stock, Series B Preferred Stock or Series C Preferred Stock, as the case may be, to the
underwriters of the offering being registered upon the undertaking of such underwriters to convert
the Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock to Common Stock,
each such step to be effective at the closing of the offering. In such event, the Company agrees to
cause the Common Stock issuable on the conversion of the Series A Preferred Stock, Series B
Preferred Stock or Series C Preferred Stock, as the case may be, to be issued within such time
period as will permit the underwriters to make and complete the distribution contemplated by the
underwriting.




          1.11 Changes in Preferred Stock or Common Stock. If, and as often as, there is any
change in the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or the
Common Stock by way of a stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and privileges granted hereby
shall continue with respect to the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Common Stock as so changed.




          1.12 “Market Stand-Off” Agreement. Each Investor hereby undertakes and confirms that,
upon and for the period specified by the Company and its underwriter(s) from and after the
effective date of the registration statement filed by the Company under the Act in respect of the
Qualified IPO, such Investor shall agree to, and shall enter into such agreements reasonably
requested by the Company and such underwriter(s) providing for, usual and customary prohibitions on
any direct or indirect sales, offers to sell, contracts to sell or other transfers or dispositions
by or on behalf of such Investor with respect to any Equity Securities owned or held by such
Investor as of the closing date of the Qualified IPO; provided, however, that such prohibitions
will be applied pro rata among all Holders in proportion to the total number of Equity Securities
owned or held by all Investors on an as-if-converted, Common Stock-equivalent basis; provided,
further, that (i) all officers, directors and stockholders holding greater than five percent (1%)
of the Equity Securities of the Company and all other persons or entities having registration
rights with respect to any Equity Securities (whether pursuant to this Agreement or otherwise)
shall have agreed to and become subject to similar prohibitions on no less restrictive terms, (ii)
in no event shall such prohibitions continue in effect for any period longer than one hundred
eighty (180) days from and after the closing date of the Qualified IPO; and (iii) the foregoing
provisions shall apply solely and exclusively in the context of a registration effected in respect
of the closing of the Qualified IPO and shall in no manner limit or impair any of the Holders’
rights with respect to any other offering, sale or disposition of Equity Securities pursuant to a
registered offering or any applicable exemption therefrom.






10









 








ARTICLE II

DEFINED TERMS 




               The capitalized terms contained in this Agreement shall have the following meanings unless
otherwise specifically defined:



               “Act” shall mean the Securities Act of 1933, as amended.



               “Affiliate” means: (a) with respect to a person, any member of such person’s family;
(b) with respect to an entity, any officer, director, stockholder, partner, manager or investor of
or in such entity or of or in any Affiliate of such entity; (c) with respect to a person or entity,
any person or entity which directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such person or entity; and (d) any “Affiliate” (as
defined in the Stockholders Agreement).



               “Business Day” shall mean Monday through Friday and shall exclude any federal or bank
holidays observed in Miami, Florida.



               “Common Stock” shall mean the common stock of the Company, $0.001 par value per share.



               “Equity Securities” shall mean the Common Stock, the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock and any other preferred stock rights to
subscribe for or to purchase, or any options for the purchase of, Common Stock, any stock or
security convertible into or exchangeable for Common Stock or any other stock, security or interest
in the Company whether or not convertible into or exchangeable for Common Stock.



               “Holder” shall mean any Investor party to this Agreement (and such person’s authorized
and permitted assigns, heirs, executors and administrators) owning or having the right to acquire
Registrable Securities.



               “Qualified IPO” shall mean a firm commitment underwritten public offering of shares of
Common Stock of the Company pursuant to an effective registration statement filed under the Act,
covering the offer and sale of Common Stock for the account of the Company which results in
aggregate net proceeds to the Company from the offering of not less than Twenty Five Million
($25,000,000) and a price per share (prior to underwriter commissions and offering expenses) of not
less than Four and 44/100 Dollars ($4.44) per share (appropriately adjusted for any
recapitalization, stock splits, combinations, consolidations, subdivisions or other similar events
occurring with respect to the Common Stock after the Effective Date) and following which offering
the Common Stock is listed on a national securities exchange approved by the Board (including the
Series C Director (as defined in the Second Amended and Restated Certificate of Incorporation of
the Company) or admitted to quotation on the NASDAQ National Market or Capital Market.



               “Registrable Securities” shall mean (i) shares of Common Stock, issued or issuable
upon conversion of any Series A Preferred Stock, Series B Preferred Stock or Series C Preferred
Stock, and (ii) any Equity Securities issued or conveyed as a dividend or distribution on or with
respect to, in exchange for or replacement of, or otherwise with respect to, any shares of Series A
Preferred Stock, Series B Preferred Stock or Series C Preferred Stock or any shares of Common Stock
issued or issuable in respect thereof as referred to in the foregoing clause (i); provided,
however, that (x) Registrable Securities shall not include any Common Stock or other Equity
Securities that have been previously sold either pursuant to a registration statement filed under
the Act or under Rule 144 promulgated under the Act, and





11









 







(y) as to each Investor, such Investor’s shares of Common Stock and other Equity Securities as
herein described shall cease to be Registrable Securities at such time as all of the same are
eligible for sale in accordance with Rule 144(k) promulgated under the Act.




               “SEC” shall mean the United States Securities and Exchange Commission.



ARTICLE III

MISCELLANEOUS




          3.1. Entire Agreement; Amendment. This Agreement constitutes the entire agreement
among the parties hereto with respect to the matters provided for herein, and it supersedes all
prior oral or written agreements, commitments or understandings with respect to the matters
provided for herein, including but not limited to the Amended Registration Rights Agreement and the
Original Registration Rights Agreement. Subject to the provisions of Section 1.7 hereof, this
Agreement may not be amended (or amended and restated, as the case may be) without the written
consent of (i) the Company, (ii) a Series A Majority; (iii) a Series B Majority and (iv) a Series C
Majority; provided, however, that any right inuring specifically to either the Series A Investors,
the Series B Investors or the Series C Investors hereunder may be waived or amended as to all
shares of such class upon the written consent of the holders of at least a Series A Majority,
Series B Majority or a Series C Majority, respectively.




          3.2. Waiver . No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement or under any other instruments given in connection
with or pursuant to this Agreement shall impair any such right, power or privilege or be construed
as a waiver of any default or any acquiescence therein. No single or partial exercise of any such
right, power or privilege shall preclude the further exercise of such right, power or privilege, or
the exercise of any other right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.




          3.3. Termination. This Agreement shall forthwith become wholly void and of no effect
upon the earlier to occur of the following: (i) all Registrable Securities eligible for
registration rights hereunder shall have (x) been sold or disposed of by each Holder pursuant to
effective registration under the Act or in compliance with any applicable exemption from such
registration or otherwise, or (y) ceased to constitute Registrable Securities by virtue of clause
(y) of the proviso to the definition of such term; (ii) five (5) years from the closing date of the
Qualified IPO; and (iii) upon the effective date of a Deemed Liquidation Event as defined in the
Stockholders Agreement.




          3.4. No Third Party Beneficiaries. Except to the extent that the rights hereunder are
assigned in accordance with Section 1.7, it is the explicit intention and agreement of the parties
hereto that no person or entity other than the parties hereto is or shall be entitled to bring any
action to enforce any provision of this Agreement against any of the parties hereto, and the
covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit
of, and shall be enforceable only by, the parties hereto or their respective successors, heirs,
executors, administrators, legal representatives and permitted assigns.




          3.5. Binding Effect. This Agreement shall be binding on and shall inure to the benefit
of the parties hereto and their respective successors, heirs, executors, administrators, legal
representatives and permitted assigns, including any successor corporation upon a reincorporation
of the Company into another jurisdiction.






12









 








          3.6. Governing Law . This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of the State of Delaware (excluding the choice of law rules thereof).




          3.7. Notices. All notices, demands, requests, or other communications which may be or
are required to be given, served, or sent by any party to any other party pursuant to this
Agreement shall be in writing and shall be hand-delivered, sent by overnight courier service or
mailed by first-class, registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:




	 	 	 	 	 
	 

	 	(i)
	 	If to the Company:
	 
	 	 	 	 
	 

	 	 	 	MAKO Surgical Corp.
	 

	 	 	 	2555 Davie Road
	 

	 	 	 	Fort Lauderdale, Florida 33317
	 

	 	 	 	Telephone: 954-927-2044
	 

	 	 	 	Facsimile: 954-927-0446
	 

	 	 	 	Attention: General Counsel
	 
	 	 	 	 
	 

	 	 	 	With a copy (which shall no constitute notice) to:
	 
	 	 	 	 
	 

	 	 	 	Goodwin Procter LLP
	 

	 	 	 	901 New York Avenue, NW
	 

	 	 	 	Washington, DC 20001
	 

	 	 	 	Telephone: 202-346-4288
	 

	 	 	 	Fax: 202-346-4444
	 

	 	 	 	Attention: Christopher J. Hagan, Esq
	 
	 	 	 	 
	 

	 	(ii)
	 	If to any Series A Investor :
	 
	 	 	 	 
	 

	 	 	 	To such Series A Investor’s address shown in the Company Stockholder
registry held at the offices of the Company.
	 
	 	 	 	 
	 

	 	 	 	in each case, with a copy (which shall not constitute notice) to:
	 

	 	 	 	Morgan, Lewis & Bockius LLP
	 

	 	 	 	502 Carnegie Center
	 

	 	 	 	Princeton, NJ 08540
	 

	 	 	 	Telephone: 609-919-6600
	 

	 	 	 	Fax: 609-919-6710
	 

	 	 	 	Attn: Steven M. Cohen, Esq.
	 
	 	 	 	 
	 

	 	(iii)
	 	If to any Series B Investor :
	 
	 	 	 	 
	 

	 	 	 	To such Series B Investor’s address shown in the Company Stockholder
registry held at the offices of the Company.
	 
	 	 	 	 
	 

	 	 	 	in each case, with a copy (which shall not constitute notice) to:
	 

	 	 	 	Alston & Bird LLP
	 

	 	 	 	One Atlantic Center
	 

	 	 	 	1201 West Peachtree Street
	 

	 	 	 	 Atlanta, GA 30309-3424
	 

	 	 	 	Telephone: 404-881-7000







13









 








	 	 	 	 	 
	 

	 	 	 	Fax: 404-881-7777
	 

	 	 	 	Attn: J. Mark Ray, Esq.
	 
	 	 	 	 
	 

	 	(iii)
	 	If to any Series C Investor:
	 
	 	 	 	 
	 

	 	 	 	To such Series C Investor’s address shown in the Company Stockholder
registry held at the offices of the Company.
	 
	 	 	 	 
	 

	 	 	 	in each case, with a copy (which shall not constitute notice) to:
	 

	 	 	 	Boies, Schiller & Flexner LLP
	 

	 	 	 	575 Lexington Avenue
	 

	 	 	 	7th Floor
	 

	 	 	 	New York, NY 10022
	 

	 	 	 	Telephone: 212-754-4207
	 

	 	 	 	Fax: 212-446-2350
	 

	 	 	 	Attn: Richard Birns, Esq.
	 
	 	 	 	 
	 

	 	(iv)
	 	If to any other Investor:
	 
	 	 	 	 
	 

	 	 	 	To such other Investor’s address shown in the Company Stockholder registry
held at the offices of the Company.





Each party may designate by notice in writing a new address to which any notice, demand, request or
communication may thereafter be so given, served or sent. Each notice, demand, request or
communication which shall be hand-delivered or mailed in the manner described above, shall be
deemed sufficiently given, served, sent, received or delivered for all purposes at such time as it
is delivered to the addressee (with the return receipt or the delivery receipt being deemed
conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.




          3.8. Execution in Counterparts. To facilitate execution, this Agreement may be executed by
facsimile and in as many counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all persons required to bind
any party, appear on each counterpart; but it shall be sufficient that the signature of, or on
behalf of, each party, or that the signatures of the persons required to bind any party, appear on
one or more of the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to produce or account for
more than a number of counterparts containing the respective signatures of, or on behalf of, all of
the parties hereto.




[SIGNATURE PAGES FOLLOW]







14










 




IN WITNESS WHEREOF, the undersigned have duly executed this Second Amended and
Restated Registration Rights Agreement, or have caused this Agreement to be duly executed
on their behalf, as of the day and year first hereinabove set forth.




	 	 	 	 	 	 	 	 	 	 	 
	The Company:	 	 	 	MAKO SURGICAL CORP.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Maurice R. Ferré, M.D. 	 	 
	 	 	 	 	 
	 	 
	 	 	 	 	Name:	 	Maurice R. Ferré, M.D.	 	 
	 	 	 	 	Title:	 	President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Company Stockholders:	 	 	 	Z-KAT, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Christopher C. Dewey 	 	 
	 	 	 	 	 
	 	 
	 	 	 	 	Name:	 	Christopher C. Dewey	 	 
	 	 	 	 	Title:	 	Interim Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Maurice R. Ferré, M.D. 	 	 
	 	 	 	 	 
	 	 
	 	 	 	 	Maurice R. Ferré, M.D.
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	FERRÉ FAMILY TRUST
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	/s/ Maurice R. Ferré, M.D. 	 	 
	 

	 	 	 	 
	 	 
	 	 	 	 	Maurice R. Ferré, M.D.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	/s/ Dana Mears, MD, Ph.D. 	 	 
	 

	 	 	 	 
	 	 
	 	 	 	 	Dana Mears, MD, Ph.D.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	/s/ Alastair Clemow, Ph.D. 	 	 
	 

	 	 	 	 
	 	 
	 	 	 	 	Alastair Clemow, Ph.D.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	/s/ Steve B. Brown 	 	 
	 

	 	 	 	 
	 	 
	 	 	 	 	Steve B. Brown	 	 






	 	 	 	 	 
	1993 GF PARTNERSHIP	 	 
	 
	 	 	 	 
	By:
	 	/s/ Aurum Gray 	 	 
	 
	 	 
	 	 
	Name:
	 	Aurum Gray 	 	 
	 

	 	 

	 	 
	Title:
	 	President 	 	 
	 

	 	 

	 	 






[Signature Page to Registration Rights Agreement]



 









 





	 	 	 	 	 
	By:

	/s/ Itta
Abovitz     Isaac Abovitz	 	 
	

	 

	 	 
	ITTA AND ISAAC ABOVITZ	 	 






	 	 	 	 	 	 	 
	APERTURE CAPITAL II, L.P.	 	 
	      By: Aperture Venture Partners LLC, its General Partner	 	 
	     

	 	          By:	 	/s/ Matthew S. Tierney 	 	 
	 

	 	 	 	 

	 	 
	     

	 	          Name:	 	Matthew S. Tierney 	 	 
	 

	 	 	 	 

	 	 
	     

	 	          Title:	 	Member 	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 
	By:
	 	/s/ Ramon Betolaza 	 	 
	 

	 	 	 	 
	RAMON BETOLAZA	 	 
	 
	 	 	 	 
	By:
	 	/s/ Jon E. Budish 	 	 
	 

	 	 	 	 
	JON E. BUDISH	 	 
	 
	 	 	 	 
	HSIOU-LING CHEN	 	 
	 
	 	 	 	 
	/s/ John R. Whitman 
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney	 	 
	 
	 	 	 	 
	STEPHEN SUN CHIAO	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	/s/ John R. Whitman 
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney	 	 
	 
	 	 	 	 
	By:
	 	/s/ Timothy E. Cronin 	 	 
	 

	 	 	 	 
	TIMOTHY E. CRONIN	 	 
	 
	 	 	 	 
	By:
	 	/s/ Christopher C. Dewey 	 	 
	 

	 	 	 	 
	Christopher C. Dewey	 	 
	 
	 	 	 	 
	By:
	 	/s/ Allen De Olazarra 	 	 
	 

	 	 	 	 
	ALLEN DE OLAZARRA	 	 
	 
	 	 	 	 
	By:
	 	/s/ Steven A. Feldman    Beryl S. Feldman 	 	 
	 

	 	 	 	 
	DR. & MRS. STEVEN A. & BERYL S. FELDMAN	 	 
	 
	 	 	 	 
	By:
	 	/s/ Lee Fensterstock 	 	 
	 

	 	 	 	 
	LEE FENSTERSTOCK	 	 






[Signature Page to Registration Rights Agreement]




 









 






	 	 	 	 	 
	MICHAEL HORGAN	 	 
	 
	 	 	 	 
	/s/ John R. Whitman
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney	 	 






IVY HEALTHCARE CAPITAL, L.P.

      By: Ivy Capital Partners I, LLC, as General Partner

      By: Ivy Capital Partners, LLC, as General Manager




	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Russell F. Warren, Jr. 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Russell F. Warren, Jr.
	 	 	Title: Co-Manager
	 
	 

	 	By:	 	/s/ Robert W. Pangia 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name: Robert W. Pangia
	 	 	Title: Co-Manager






JEFFRIES & COMPANY, INC.




	 	 	 	 	 
	By:
	 	/s/ Roland T. Kelly 	 	 
	 

	 	 

	 	 
	Name:
	 	Roland T. Kelly 	 	 
	 

	 	 

	 	 
	Title:
	 	Assistant General Counsel and SVP 	 	 
	 

	 	 

	 	 






	 	 	 	 	 
	By:
	 	/s/ John P. Kaelblein 	 	 
	 

	 	 

	 	 
	JOHN P. KAELBLEIN	 	 
	 
	 	 	 	 
	By:
	 	/s/ John Kroon 	 	 
	 

	 	 

	 	 
	JOHN KROON	 	 
	 
	 	 	 	 
	By:
	 	/s/ Robert Kutnick 	 	 
	 

	 	 

	 	 
	ROBERT KUTNICK	 	 
	 
	 	 	 	 
	RICHARD LEE	 	 
	 
	 	 
	/s/ John R. Whitman 
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney	 	 






MDS LIFE SCIENCES TECHNOLOGY FUND II NC LIMITED PARTNERSHIP

     By: MDS LSTF II (NCGP) Inc., its General Partner




	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Graysanne
Bedell      Peter Van der Velden	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	      Graysanne
Bedell      Peter Van der Velden 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






[Signature Page to Registration Rights Agreement]




 









 





MDS LIFE SCIENCES TECHNOLOGY FUND II QUEBEC LIMITED PARTNERSHIP

      By: MDS LSTF II (QGP) Inc., its General Partner




	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Graysanne
Bedell        Peter Van der
Velden	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	     Graysanne
Bedell        Peter Van der
Velden 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	MK INVESTMENT CO.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Marcelo Chao 	 	 
	 

	 	 	 	 
	Name:	 	Marcel Chao 	 	 
	 

	 	 	 	 
	Title:	 	Authorized Signatory 	 	 
	 

	 	 	 	 





MLII CO-INVESTMENT FUND NC LIMITED PARTNERSHIP

     By: MLII (NCGP) Inc., its General Partner




	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Graysanne
Bedell         Peter Van
der Velden	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	      Graysanne
Bedell         Peter Van
der Velden 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	By:

	 	/s/ Fred Moll 	 	 
	 

	 	 	 	 
	FRED MOLL
	 
	 	 	 	 
	By:
	 	/s/ Jim Nealis 	 	 
	 

	 	 	 	 
	JIM NEALIS
	 
	 	 	 	 
	By:
	 	/s/ Mark Patterson 	 	 
	 

	 	 	 	 
	MARK PATTERSON
	 
	 	 	 	 
	By:
	 	/s/ Chris Pechock 	 	 
	 

	 	 	 	 
	CHRIS PECHOCK
	 
	 	 	 	 
	PIERREPONT FAMILY INVESTMENT PARTNERSHIP I, L.P.
	 
	 	 	 	 
	By:
	 	/s/ John R. Whitman 	 	 
	 

	 	 	 	 
	Name: John R. Whitman, Power of Attorney
	PRESIDENT LIFE SCIENCES CAYMAN CO. LTD.
	 
	 	 	 	 
	By:
	 	/s/ Te-Cheng Tu 	 	 
	 

	 	 	 	 
	Name:	 	Te-Cheng Tu 	 	 
	 

	 	 	 	 
	Title:	 	President 	 	 
	 

	 	 	 	 





[Signature Page to Registration Rights Agreement]




 









 








	 	 	 	 	 
	By:
	 	/s/ Martin A. Schaeffer 	 	 
	 

	 	 	 	 
	MARTIN A. SCHAEFFER
	 
	 	 	 	 
	SMITHFIELD FIDUCIARY LLC
	 
	 	 	 	 
	By:
	 	/s/ Adam J. Chill	 	 
	 

	 	 	 	 
	 

	 	Adam J. Chill, an authorized person	 	 
	 
	 	 	 	 
	SYCAMORE VENTURE CAPITAL, L.P.
	 
	 	 	 	 
	By:
	 	/s/ John R. Whitman 	 	 
	 

	 	 	 	 
	Name:	 	John R. Whitman 	 	 
	 

	 	 	 	 
	Title:	 	President 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/ William F. Tapia 	 	 
	 

	 	 	 	 
	WILLIAM F. TAPIA
	 
	 	 	 	 
	By:
	 	/s/ Lawrence Teitelbaum 	 	 
	 

	 	 	 	 
	LAWRENCE TEITELBAUM
	 
	 	 	 	 
	By:
	 	/s/ David Tepper 	 	 
	 

	 	 	 	 
	DAVID TEPPER
	 
	 	 	 	 
	KILIN TO
	 
	 	 	 	 
	/s/
John R. Whitman
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney
	 
	 	 	 	 
	MITCHELL TSENG
	 
	 	 	 	 
	/s/
John R. Whitman
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney
	 
	 	 	 	 
	TUDOR INVESTMENT CORPORATION,

as investment adviser to each of The Raptor
Global
 Portfolio Ltd., The
Tudor BVI Global Portfolio
Ltd.
 and The Altar Rock Fund L.P.
	 
	 	 	 	 
	By:
	 	/s/ Stephen N. Waldman 	 	 
	 

	 	 	 	 
	Name:	 	Stephen N. Waldman 	 	 
	 

	 	 	 	 
	Title:	 	Managing Director 	 	 
	 

	 	 	 	 





[Signature Page to Registration Rights Agreement]




 









 






	 	 	 	 	 
	TUDOR PROPRIETARY TRADING, L.L.C.	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/ Stephen N. Waldman 	 	 
	 

	 	 	 	 
	Name:	 	Stephen N. Waldman 	 	 
	 

	 	 	 	 
	Title:	 	Managing Director 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	VENTUREVEST LTD.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael A. Fong 	 	 
	 

	 	 	 	 
	Name:	 	Michael A. Fong 	 	 
	 

	 	 	 	 
	Title:	 	Vice President 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	JONAS C.T. WANG	 	 
	 
	 	 	 	 
	John R. Whitman 
	 	 
	 	 	 
	By: John R. Whitman, Power of Attorney	 	 
	 
	 	 	 	 
	By:
	 	/s/ JOHN R. WHITMAN 	 	 
	 

	 	 	 	 
	JOHN R. WHITMAN	 	 
	 
	 	 	 	 
	WHITMAN CHILDREN IRREVOCABLE TRUST	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/ John R. Whitman 	 	 
	 

	 	 	 	 
	Name:	 	John R. Whitman 	 	 
	 

	 	 	 	 
	Title:	 	Trustee 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	ZIEGLER MEDITECH EQUITY PARTNERS LP	 	 
	      By: Ziegler Meditech Partners, LLC, its General Partner	 	 






	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Donald I. Grande 	 	 
	 

	 	Name:	 	Donald I. Grande 	 	
 
	 

	 	Title:
	 	Chief
Administration Officer 	 	 





[Signature Page to Registration Rights Agreement]




 









 






	 	 	 	 	 
	MEDITECH ADVISORS, LLC

	 	 
	 
	 	 	 	 
	By:
	 	/s/ Estan Machover 	 	 
	Name:  
	Estan Machover 
	 	 
	 

	 

	 	 
	 
	 	 	 	 
	Witness:	 	 
	By:
	 	 	 	 
	 

	 	 	 





[Signature Page to Registration Rights Agreement]




 









 







COUNTERPART SIGNATURE PAGE AND JOINDER

TO MAKO SURGICAL CORP.

SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT




     The undersigned hereby agrees to be bound by all of the provisions, terms and conditions
of the Second Amended and Restated Registration Rights Agreement of MAKO Surgical Corp., dated
February 6, 2007, as if an original signatory thereto.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Attention:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(telephone)	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	(fax)