EX-4.5 Amendment to Stockholders Agreement



 





EXHIBIT 4.5




Amendment and Restatement of the Company Stockholders Agreement




     WHEREAS, by resolution at the Special Meeting of the Board of Directors of the Company (the
“Board”) on March 5, 2007 (the “March 5 Meeting”), the Board approved and ratified, subject to the
approval of the required percentages of MAKO Stock, the following two (2) amendments (together, the
“Amendments”) to the Second Amended and Restated Stockholders Agreement of the Company, effective
February 6, 2007 (the “Stockholders Agreement”):



     Amendment 1: Section 2.1(a) of the Stockholders Agreement shall be replaced in its
entirety with the following:




     2.1(a) Subject to Section 2.1(i) set forth below, the authorized membership of
the Board of Directors of the Company (the “Board”) may be expanded up to and
maintained at nine (9) directors.



     Amendment 2: Section 6.5 of the Stockholders Agreement shall be replaced in its
entirety with the following:




     6.5 Fiduciary Duties. The Company shall have no interest or expectation in,
nor right to be informed of, any corporate opportunity, and in the event any Director or
such Director’s Affiliates acquires knowledge of a potential transaction or matter which may
be a corporate opportunity, such Director or Affiliate shall, to the fullest extent
permitted by law, have no duty (fiduciary or otherwise) or obligation to communicate or
offer such corporate opportunity to the Company or any of its Affiliates or to any other
Directors or Company Stockholders and shall not, to the fullest extent permitted by law, be
liable to the Company or any of its Affiliates or stockholders for breach of any duty
(fiduciary or otherwise) as a Director or Affiliate by reason of the fact that any Director
or Affiliate acquires, creates, develops or seeks such corporate opportunity for itself,
directs such corporate opportunity to another person or entity, or otherwise does not
Communicate information regarding such corporate opportunity to the Company or its
Affiliates or stockholders, and the Company, to the fullest extent permitted by law, waive
and renounce any claims that such business opportunity constituted a corporate opportunity
that should have been presented to the Company or any of its Affiliates, unless such
corporate opportunity is presented to or acquired, created or developed by, or otherwise
comes into the possession of, a Director in such Person’s capacity as a Director or Company
Stockholder. For purposes of this Agreement, “corporate opportunity” shall include any
potential transaction, investment or business opportunity or prospective economic or
competitive advantage in which the Company or any of its Affiliates could have any
expectancy or interest. The provisions of this Agreement, to the extent that they restrict
the duties (including fiduciary duties) and liabilities of a Director or Company Stockholder
otherwise existing at law or in equity or by operation of the preceding sentence, are agreed
by the Company Stockholders to replace such duties and liabilities of such Director or
Company Stockholder.



     RESOLVED, the undersigned hereby approves, ratifies, adopts and consents to the Amendments to
the Stockholders Agreement, finding the Amendments to be commercially



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reasonable and in the best interests of all holders of MAKO Stock (collectively. the
“Stockholders”) and the Company; and



     RESOLVED FURTHER, that the undersigned hereby consents that Dr. Maurice Ferré and Menashe
Frank (each a “Designated Officer” of the Company) be authorized and directed, for and on behalf of
the Stockholder and the Company, to cause such additions, modifications, amendments or deletions to
be made to the Stockholders Agreement, including the Amendment and Restatement thereof, and to
execute and deliver such other agreements, certificates, instruments or documents related to the
Amendments as any such Designated Officer deems as necessary for the purpose of giving effect to
the foregoing resolution.



     Execution By Counterparts; Facsimile Transmission




     RESOLVED, that this Action by Written Consent may be executed in multiple counterparts or a
facsimile thereof, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Action shall be filed with the minutes of the
proceedings of the Stockholders, with a copy provided to all non-signing Stockholders as required
by Section 228(e) of the Delaware General Corporation Law and Section 2.11 of the Amended and
Restated Bylaws of the Company.



     IN WITNESS WHEREOF, the undersigned has executed this Action by Written Consent to be
effective March 5, 2007.



	 	 	 	 	 
	MAKO STOCKHOLDER





MK Investments Co.

 	 
	By:  	/s/ Marcelo Chao
 	 
	 	Name:  	Marcelo Chao 	 
	 	Title:  	Attorney In Fact 	 
	 
	 	The Raptor Global Portfolio Ltd.

The Tudor BVI Global Portfolio Ltd.

The Altar Rock Fund L.P.	 
	  	    By:    Tudor Investment Corporation
 	 
	 
	 	 
	By:  	                       /s/ Stephen N. Waldman
 	 
	 	Name:  	Stephen N. Waldman 	 
	 	Title:  	Managing Director 	 



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	Tudor Proprietary Trading, L.L.C.

 	 
	By:  	/s/ Stephen N. Waldman
 	 
	 	Stephen N. Waldman 	 
	 	Managing Director 	 
	 
	MDS Life Sciences Technology Fund II

NC Limited Partnership, by its General Partner

MDS LSTF II (NC GP) Inc.

 	 
	By:  	/s/ Graysanne Bedell
 	 
	By:  	                        /s/ Stephen Cummings
 	 
	 	Name:  	Graysanne Bedell 	 
	 	Name:  	       Stephen Cummings 	 
	 	Title: 	 
	 
	/s/ David Tepper
 	 
	David Tepper 	 
	 	 	 
	 
	 	 	 
	By:  	/s/
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	Aperture Capital II

 	 
	By:  	/s/ Matthew S. Tierney
 	 
	 	Name:  	Matthew S. Tierney 	 
	 	Title:  	Member of AVP the GP of AC II 	 
	 
	Christopher C. Dewey

 	 
	By:  	/s/ Christopher C. Dewey
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 
	For: Sycamore Venture Capital

 	 
	/s/ John R. Whitman
 	 
	 	 	 
	 	 	 
	By:  	                          John R. Whitman
 	 
	 	Name:  	 	 
	 	Title:  	President 	 



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	MDS Life Sciences Technology Fund II

Quebec Limited Partnership, by its General Partner

MDS LSTF II (QGP) Inc.

 	 
	By:  	/s/ Graysanne Bedell
 	 
	By:  	                        /s/ Stephen Cummings
 	 
	 	Name:  	Graysanne Bedell 	 
	 	Name:  	Stephen Cummings 	 
	 	Title:  	 	 
	 
	ML II Co-Investment Fund NC Limited Partnership,

by its General Partner ML II (NCGP) Inc.

 	 
	By:  	/s/ Graysanne Bedell
 	 
	By:  	                        /s/ Stephen Cummings
 	 
	 	Name:  	Graysanne Bedell 	 
	 	Name:  	Stephen Cummings 	 
	 	Title:  	 	 
	 




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