EX-10.27 License Agreement w/University of Florida



 





EXHIBIT 10.27




EXECUTION COPY




Agreement No. A6285




EXCLUSIVE LICENSE AGREEMENT




By and between




University of Florida Research Foundation




and




MAKO Surgical Corp.



 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.



Page 1 of 24









 








TABLE OF CONTENTS




 





	 	 	 	 	 	 	 
	Section 1
	 	Definitions

	 	 	3	 
	 
	 	 
	 	 	 	 
	Section 2
	 	Grant

	 	 	5	 
	 
	 	 
	 	 	 	 
	Section 3
	 	Commercialization

	 	 	6	 
	 
	 	 
	 	 	 	 
	Section 4
	 	Payments

	 	 	6	 
	 
	 	 
	 	 	 	 
	Section 5
	 	Representations, Warranties and Disclaimers

	 	 	8	 
	 
	 	 
	 	 	 	 
	Section 6
	 	Record keeping

	 	 	10	 
	 
	 	 
	 	 	 	 
	Section 7
	 	Prosecution and Maintenance of Licensed Patents

	 	 	10	 
	 
	 	 
	 	 	 	 
	Section 8
	 	Infringement and Invalidity

	 	 	11	 
	 
	 	 
	 	 	 	 
	Section 9
	 	Term and Termination

	 	 	13	 
	 
	 	 
	 	 	 	 
	Section 10
	 	Assignment

	 	 	13	 
	 
	 	 
	 	 	 	 
	Section 11
	 	Dispute Resolution Procedures

	 	 	14	 
	 
	 	 
	 	 	 	 
	Section 12
	 	Product Liability; Conduct of Business

	 	 	15	 
	 
	 	 
	 	 	 	 
	Section 13
	 	Use of Names

	 	 	16	 
	 
	 	 
	 	 	 	 
	Section 14
	 	Miscellaneous

	 	 	16	 
	 
	 	 
	 	 	 	 
	Section 15
	 	Notices

	 	 	17	 
	 
	 	 
	 	 	 	 
	Section 16
	 	Contract Formation and Authority

	 	 	18	 
	 
	 	 
	 	 	 	 
	Section 17
	 	United States Government Interests

	 	 	19	 
	 
	 	 
	 	 	 	 
	Section 18
	 	Confidentiality

	 	 	19	 
	 
	 	 
	 	 	 	 
	Section 19
	 	University Rules and Regulations

	 	 	19	 




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.



Page 2 of 24









 







This EXCLUSIVE LICENSE AGREEMENT (“Agreement”) is made effective the 15th day of August,
2007, (the “Effective Date”) by and between the University of Florida Research Foundation, Inc.
(hereinafter called “UFRF”), a nonstock, nonprofit Florida corporation, and MAKO Surgical Corp.
(hereinafter called “Licensee”), a corporation organized and existing under the laws of Delaware;



WHEREAS,
UFRF and Licensee jointly own all rights to certain inventions and technical information
relating to modular knee implant systems that are described in the “Licensed Patents,” as defined
below;



WHEREAS, the University of Florida Board of Trustees (“University”) and Licensee entered
into that certain Mutual Confidential Disclosure Agreement, dated as of December 7, 2004, and that
certain Addendum to Confidentiality and Non-Disclosure Agreement, dated as of January 10, 2005
(with the addition of Dr. Scott Banks as a party), which will be collectively referred to herein as
the “Non-Disclosure Agreement”;



WHEREAS UFRF is willing to grant a license to Licensee under the Licensed Patents, and Licensee
desires a license under all of them.



WHEREAS, the University and Licensee have entered into that certain Research Agreement, effective
as of February 10, 2005, (as amended, the “Research Agreement”), concerning the development
of design concepts for modular knee implant systems suitable for implantation using robotically
assisted minimally invasive surgical techniques.



NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the
parties covenant and agree as follows:



Section 1 Definitions





	1.1	 	An “Affiliate” of a party shall mean an entity directly or indirectly controlling,
controlled by or under common control with that party, where control means the ownership or
control, directly or indirectly, of more than fifty percent (50%) of all of the voting power
of the shares (or other securities or rights) entitled to vote for the election of directors
or other governing authority, as of the date of this Agreement or hereafter during the term
of this Agreement; provided that such entity shall be considered an Affiliate only for the
time during which such control exists.
	 
	1.2	 	“Enabling Technology” shall mean all the proprietary technology and information
known by the Inventors while employed by the UF Entities, on or before the Effective Date,
reasonably necessary to practice under or otherwise derive the benefits of the Licensed
Patents but not disclosed in the Licensed Patents, including but not limited to, information,
techniques, biological materials, methods of manufacture, methods of use, and the like, all
only to the extent they exist or have been developed on or before the Effective Date.
	 
	1.3	 	“Improvements” shall mean any modification of an invention described in the Licensed
Patents made by the Inventors during the term beginning on the effective date of the Research
Agreement and ending at the conclusion of the New Contract






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 3 of 24









 












	 	 	Period as described in the Amendment to the Research Agreement (attached hereto as Appendix
B) which, if unlicensed, would infringe one or more claims of the Licensed Patents.
	 
	1.4	 	“Intellectual Property Rights” shall mean individually and collectively all patents,
patent applications and inventions, copyrights, Improvements, discoveries, and/or technical
information, including without limitation software, know-how, documentation, plans, drawings,
and data, whether patentable or copyrightable or not, and all renewals and extensions
thereof.
	 
	1.5	 	“Inventors” shall mean [***] and [***] , and any student
assistant under the Research Agreement, including, without limitation [***] ,
during the respective terms of their employment by the University of Florida.
	 
	1.6	 	“Licensed Field” means [***],
including, without limitation, the fields of
[***] .
	 
	1.7	 	“Licensed Patents” shall refer to and mean all of the following patents and patent
applications: [***]; and all U.S. and foreign patent applications claiming priority to these
applications or disclosing or claiming any Improvements, including without limitation
divisional, continuation, and reissue applications and any patent(s)/patent application(s)
claiming inventions resulting from the Research Agreement, whether or not such inventions are
Improvements.
	 
	1.8	 	“Licensed Process” shall mean (a) any process that is covered in whole or in part by
an issued, unexpired claim or a pending claim contained in the Licensed Patents in any
country in which such process is practiced, or (b) any process that employs or was discovered
by UFRF or Licensee employing Enabling Technology, anywhere in the world.
	 
	1.9	 	“Licensed Product” shall mean an apparatus, article of manufacture, composition of
matter, or device, or part thereof,






	 	(a)	 	the manufacture or sale of which would, but for licenses granted
pursuant to this Agreement, infringe one or more issued and valid claims of any
unexpired and enforceable Licensed Patents;
	 
	 	(b)	 	that is made by a process that would, but for licenses granted
pursuant to this Agreement, constitute infringement of one or more issued and
valid claims of any of the unexpired and enforceable Licensed Patents; or
	 
	 	(c)	 	that, in its intended manner of use or operation, performs a
process, which would, but for licenses granted pursuant to this Agreement,
constitute infringement of one or more issued and valid claims of any of the
unexpired and enforceable Licensed Patents.






	1.10	 	“Licensed Territory” shall be the entire world.






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 4 of 24









 












	1.11	 	“Net Sales” shall mean the amount invoiced on sales (regardless of uncollectible
accounts) of Licensed Product and/or services using Licensed Processes after deducting, if
not already deducted in the amount invoiced:






	 	•	 	Trade and/or quantity discounts
	 
	 	•	 	Credits on returns, recalls, allowances
	 
	 	•	 	Commissions paid (but not in excess of amounts that are usual and customary in
medical device industry)
	 
	 	•	 	Taxes, excises and other governmental charges, and
	 
	 	•	 	Outbound transportation, shipping, handling costs






	 	 	Net Sales for a Licensed Product or Licensed Process that is transferred to a third party
for promotional purposes without charge or at a discount shall be the average invoiced price
to the customer of that type of Licensed Product and/or Licensed Process during the
applicable calendar quarter.
	 
	1.12	 	“Sublicensee” shall mean any third party to whom Licensee confers the right to make,
use, offer for sale, sell or import Licensed Product and/or Licensed Processes or to when any
consensual transfer of any rights under Intellectual Property Rights occurs.
	 
	1.13	 	“UF Entities” refers to the UFRF and the University of Florida.





Section 2 Grant





	2.1	 	License Under Licensed Patents.






	 	2.1.1	 	UFRF hereby grants to Licensee and its Affiliates an exclusive (even as to
University), worldwide, fully transferable, sublicensable, irrevocable, non-terminable
(except under the terms of Section 9) and cost-free (except for the Royalty and other
remuneration provisions as provided for in Section 4 hereof) license, continuing
uninterrupted for the life of the Licensed Patents in the Licensed Territory to make,
have made, use, offer for sale, import and sell Licensed Products and/or Licensed
Processes claimed in the Licensed Patents for the Licensed Field.
	 
	 	2.1.2	 	Notwithstanding the grant of exclusive license, UFRF reserves to itself and the
University of Florida the right to make, have made and use inventions claimed in the
Licensed Patents solely for their internal, research, clinical (including, but not
limited to patient care at Shands Teaching Hospital and University of Florida patient
care facilities), and educational purposes. In addition, UFRF reserves to itself, as
well as to the University of Florida and to all non-profit research institutions, the
right to use inventions claimed in the Licensed Patents solely for their internal,
research and educational purposes and to meet all applicable government requirements
governing the use of such inventions.






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 5 of 24









 












	2.2	 	License For Enabling Technology. UFRF hereby grants to Licensee and its Affiliates
a non-exclusive, license, in the Licensed Territory and the Licensed Field under the all
Intellectual Property Rights (other than patent rights) in the Enabling Technology to make,
have made, use, offer for sale, copy, disclose, and sell Licensed Products and/or Licensed
Processes. Upon request of Licensee, UFRF will deliver, or caused to be delivered, any
Enabling Technology within the possession of the Inventors.
	 
	2.3	 	Sublicense.






	 	2.3.1	 	Licensee may grant under the licenses granted in this Agreement written,
sublicenses to third parties. The scope of the sublicenses may not exceed the scope of
the licenses granted in this Agreement and must terminate upon termination of this
Agreement.
	 
	 	2.3.2	 	In respect to Licensed Products and/or Licensed Processes sold by Sublicenses
pursuant to a sublicense granted by Licensee under Section 2.3.1, Licensee shall be
responsible for payment to UFRF of an earned royalty equal to the
earned royalty that
Licensee would have been required to pay to UFRF pursuant to Section 4.1 had Licensee
sold Licensed Products sold by such Sublicensee. Licensee may retain any earned
royalties paid by Sublicensee in excess of this amount.
	 
	 	2.3.3	 	Licensee shall provide UFRF with an unredacted copy of each sublicense
agreement and any agreement which transfers intellectual property rights granted
hereunder, within thirty (30) days after execution of the sublicense agreement.





Section 3 Commercialization





	3.1	 	Licensee has no obligation to commercialize the technology relating to any of the Licensed
Patents.





Section 4 Payments





	4.1	 	Earned Royalties






	 	4.1.1	 	Royalty on Licensed Patents. Licensee will, in accordance with the
terms and conditions of this Agreement and for so long as this Agreement is in effect,
pay to UFRF an earned royalty calculated as [***] percent ([***]%) of Net Sales by
Licensee or its Sublicensee of Licensed Products, the sale of which by Licensee or its
Sublicensee, would, if not for this Agreement, infringe a valid claim of an unexpired,
granted patent included in the Licensed Patents. The royalty is deemed earned as of the
earlier of the date the Licensed Product is sold and paid for, the date an invoice is
sent by Licensee or its Sublicensee(s), or the date a Licensed Product is transferred
to a third party for any promotional reasons.






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 6 of 24









 












	 	4.1.2	 	Royalties payable pursuant to Section 4.1.1 shall not be additive for any given
unit of Licensed Product. Payment of an earned royalty pursuant to this Section 4.1.1
on a Licensed Product exhausts throughout the world all patent and other rights of UFRF
and its Affiliates under the Licensed Patents and Enabling Technology as to the
particular Licensed Product and/or Licensed Processes.
	 
	 	4.1.3	 	Reduction of Earned Royalty.






	 	(a)	 	In the event that licenses from third parties are required by
Licensee in order to make have made, use, sell, offer to sell or import any
particular Licensed Product and/or Licensed Process and cumulative royalties
owed by Licensee to all parties (including UFRF) on any Licensed Product and/or
Licensed Process exceeds [***]% of Net Sales then UFRF agrees to a reduction in
the royalty rate under the following terms and conditions:






	 	i)	 	UFRF shall be notified in writing 30 days in
advance of any in-licensing Agreement relating to the Licensed Products
and/or Licensed Processes.
	 
	 	ii)	 	Net Sales must be received by licensee before the
actual reduction in royalties paid to UFRF is applied:
	 
	 	iii)	 	the royalty reduction will only apply to third
party technology that is in-licensed, integrated into the final product,
and sold to the customer (complete device). Royalties on unaffected
products will not be reduced.
	 
	 	iv)	 	the royalty for the affected product will be
reduced by no more than [***] percent ([***]%) per in-licensing
occurrence.
	 
	 	v)	 	the total reduction in the royalty resulting from
all occurrences of in-licensing (section i through iv above) shall not
exceed [***]% of the original royalty specified in Section 4.1.1 of this
Agreement.
	 
	 	vi)	 	Royalties from sublicenses will pass-through to
UFRF at the same Royalty Rate specified in this Agreement. Company is
free to negotiate and collect a higher Royalty Rate from sublicenses.






	4.2	 	Accounting for Payments.






	 	4.2.1	 	Payment of Earned Royalties. Amounts owing to UFRF under Section 4.1
shall be paid on a quarterly basis, with such amounts due to UFRF on or before the
thirtieth day following the end of the calendar quarter ending on March 31, June 30,
September 30 or December 31 in which such amounts were earned. All amounts owing to
UFRF pursuant to this agreement which remain unpaid more than sixty (60) days after
they are due to UFRF shall accrue interest at






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 7 of 24









 












	 	 	 	the rate of 1.5% per month. However, in no event shall this interest provision be
construed as a grant of permission for any payment delays. Licensee shall also be
responsible for repayment to UFRF of any attorney, collection agency, or other
out-of-pocket UFRF expenses required to collect overdue payments due from this
Section 4.2.1 or any other applicable section of this Agreement.
	 
	 	4.2.2	 	Payment Address. Except as otherwise directed, all amounts owing to
UFRF under this Agreement shall be paid in U.S. dollars to UFRF at the following
address:






			
	                    	 	University of Florida Research Foundation, Inc.

223 Grinter Hall

PO Box 115500

Gainesville, Florida 32611-5500

Attention: Business Manager






	 	 	 	All royalties owing with respect to Net Sales stated in currencies other
than U.S. dollars shall be converted at the rate shown in the Federal Reserve Noon
Valuation — Value of Foreign Currencies on the day preceding the payment.
	 
	 	4.2.3	 	Royalty Report. A certified full accounting statement showing how any
amounts payable to UFRF under Section 4.1 have been calculated shall be submitted to
UFRF on the date of each such payment. In addition to being certified, such accounting
statements shall contain a written representation signed by an executive officer of
Licensee that states that the statements are true, accurate, and fairly represent all
amounts payable to UFRF pursuant to this Agreement. Such accounting shall be on a
per-country and product line, model or trade name basis and shall be summarized on the
form shown in Appendix A of this Agreement. In the event no payment is owed to UFRF,
an accounting demonstrating that fact shall be supplied to UFRF.
	 
	 	4.2.4	 	Withholding of Taxes. UFRF is exempt from paying income taxes under
U.S. law. Therefore, all payments of royalties due under this Agreement shall be made
without deduction for, or withholding of any taxes, assessments, or other charges of
any kind which may otherwise be imposed by any government outside of the United States,
or any political subdivision of such government, on UFRF with respect to any amounts
payable to UFRF pursuant to this Agreement. Licensee will not seek reimbursement from
UFRF, and UFRF has not obligation under this Agreement, to reimburse Licensee for, any
such taxes, assessments, or other charges paid by Licensee.





Section 5 Representations, Warranties and Disclaimers





	5.1	 	UFRF represents and warrants that, except as otherwise provided under Section 17.1 of this
Agreement with respect to U.S. Government interests, it is the owner of the Licensed Patents
and Enabling Technology, or otherwise has the right to grant the licenses granted to Licensee
in this Agreement. UFRF further represents and warrants






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 8 of 24









 












	 	 	that it possesses the authority and necessary rights to make the grants of license to
Licensee in Sections 2.1 and 2.2.
	 
	5.2	 	UFRF further represents and warrants that neither it nor the University has granted, or will
grant during the term of this Agreement, to any other party any licenses under the Licensed
Patents for the Licensed Field and Licensed Territory.
	 
	5.3	 	UFRF further represents and warrants that to the best of its knowledge UFRF has not
intentionally omitted from the Licensed Patents any inventions owned or licensable by the UF
Entities, invented, in whole or in part, by [***] and/or [***] and directed to [***] before
the Effective Date (each, if any, a “Omitted Invention”). As Licensee’s sole and exclusive
remedy for UFRF’s omission of an Omitted Invention, UFRF covenants that should UFRF discover
an Omitted Invention after the Effective Date, each and every such Omitted Invention shall
automatically be included as a Licensed Patent under this Agreement at no additional
consideration. In accordance with Section 2.1.1 or this Agreement, any inventions resulting
from the Research Agreement, whether or not Improvements, shall automatically be included as
Licensed Patents under this Agreement at no additional consideration.
	 
	5.4	 	Nothing in this Agreement shall be construed as:






	 	5.4.1	 	a warranty or representation by UFRF as to the validity or scope of any right
included in the Licensed Patents;
	 
	 	5.4.2	 	a warranty or representation that anything made, used, sold or otherwise
disposed of under the license granted in this Agreement will or will not infringe
patents of third parties;
	 
	 	5.4.3	 	an obligation to bring or prosecute actions or suits against third parties for
infringement of Licensed Patents;
	 
	 	5.4.4	 	an obligation to furnish any know-how not provided in Licensed Patents or any
services other than those specified in this Agreement; or
	 
	 	5.4.5	 	a warranty or representation by UFRF that it will not grant licenses to others
to make, use or sell products not covered by the claims of the Licensed Patents which
may be similar and/or compete with products made or sold by Licensee.






	5.5	 	Each of the undersigned signatories, executing on behalf of UFRF and Licensee, represents
and warrants that (a) the execution and delivery of, and compliance with, this Agreement has
been duly authorized by their respective entities, (b) such signatory has actual necessary
legal authority to bind such entities to the terms of this Agreement and the transactions
contemplated herein, and (c) this Agreement shall, by its terms, bind each of such entities
to the provisions and covenants set forth herein.






	5.6	 	EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
REPRESENTATIONS AND EXTENDS NO






 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 9 of 24









 












	  	 	WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND
VALIDITY OF PATENT RIGHTS CLAIMS,
ISSUED OR PENDING. UFRF ASSUMES NO
RESPONSIBILITIES WHATSOEVER WITH
RESPECT TO USE, SALE, OR OTHER
DISPOSITION BY LICENSEE, ITS
SUBLICENSEE(S), OR THEIR VENDEES OR
OTHER TRANSFEREES OF PRODUCT
INCORPORATING OR MADE BY USE OF
INVENTIONS LICENSED UNDER THIS
AGREEMENT.





Section 6 Record keeping





	6.1	 	Licensee and its Sublicensee(s) shall keep books and records sufficient to verify the
accuracy and completeness of Licensee’s and its Sublicensee(s)’s accounting referred to
above, including without limitation, inventory, purchase and invoice records, manufacturing
records, sales analysis, general ledgers, financial statements, and tax returns relating to
the Licensed Products and/or Licensed Processes. Such books and records shall be preserved
for a period not less than six years after they are created, both during and after the term
of this Agreement.
	 
	6.2	 	UFRF shall have the right to inspect the books and records of Licensee no more than once per
year by retaining a certified public accounting firm, paying for the expenses, giving
reasonable notice of such inspection to Licensee, and agreeing and causing such accounting
firm to agree to maintain the confidentiality of any non-public information learned as a
result of such inspection. In the event that any such audit results in a finding that
Licensee has underpaid UFRF by more than five percent (5%) (i.e, that the actual amount that
should have been paid to UFRF is more than 5% greater than the amount actually paid) then in
addition to any other payments due hereunder, Licensee shall be required to pay for the costs
incurred by UFRF in conducting such audit and for the costs of an audit conducted with
respect to the subsequent year’s royalties.
	 
	6.3	 	At any time during the term of this agreement, but no more frequently than once a year, UFRF
may request in writing that Licensee verify the calculation of any past payments owed to
UFRF through the means of a self-audit. Within ninety (90) days of the request, Licensee
shall complete a self-audit of its books and records to verify the accuracy and completeness
of the payments owed. Within thirty (30) days of the completion of the self-audit Licensee
shall submit to UFRF a report detailing the findings of the self audit and the manner in
which it was conducted in order to verify the accuracy and completeness of the payments owed.
If Licensee has determined through its self-audit that there is any payment deficiency,
Licensee shall pay UFRF the deficiency along with applicable interest under Section 4.2.1
with the submission of the self-audit report to UFRF.





Section 7 Prosecution of Licensed Patents





	7.1	 	Prosecution.




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 10 of 24









 












	 	7.1.1	 	Licensee will have the sole right, but not the obligation, to file, prosecute,
control prosecution of, and maintain the Licensed Patents using counsel of its choice.
UFRF will execute, and will take reasonable actions to obtain the cooperation of its
respective employees in executing, all papers reasonably required to enable Licensee to
file, prosecute, and maintain such Licensed Patents.
	 
	 	7.1.2	 	Licensee may, at its sole option, give control to UFRF to prosecute and/or
maintain any one or more of the Licensed Patents using counsel of its choice with
approval by Licensee. Should UFRF be given and take control and responsibility for
prosecution and/or maintenance of any such Licensed Patents and decide to give up such
control and responsibility, or decide to abandon such Licensed Patents with the intent
not to continue examination of the claimed invention in another patent application,
UFRF must give Licensee reasonable notice of its intentions and take all reasonable
steps to cooperate with Licensee and to transfer to Licensee control of such Licensed
Patents without loss of rights.
	 
	 	7.1.3	 	Licensee will, upon request by UFRF, provide UFRF with copies of any patent
application, amendment, or communication sent to or received from the United States
Patent and Trademark Office and foreign patent offices.






	7.2	 	Payment of Prosecution and Maintenance Costs.






	 	7.2.1	 	Payment of all fees and costs relating to the filing, prosecution, and
maintenance of the Licensed Patents shall be the responsibility of the party having
control and responsibility for such Licensed Patents.






	7.3	 	Renunciation of License. Licensee may give up its license with respect to any one or more
Licensed Patents by giving at least sixty (60) days written notice to UFRF of its intention
to do so. Licensee will remain liable for any prosecution and maintenance costs incurred
prior to giving up its license, but will have no further rights or obligations under this
Article 7 with respect to the particular Licensed Patent.





Section 8 Infringement and Invalidity





	8.1	 	Each party shall inform the other promptly in writing of any alleged infringement of the
Licensed Patents by a third party within the Licensed Field and of any available evidence
thereof.






	8.2	 	During the term of this Agreement, Licensee shall have the right, but shall not be
obligated, to prosecute in good faith and at its own expense any such infringements of the
Licensed Patents. If Licensee files suits to complain of any such infringement, UFRF agrees
that Licensee may include UFRF as a co-plaintiff in any such suit, without expense to UFRF.
No settlement, consent judgment or other voluntary final disposition of the suit may be
entered into without the consent of UFRF, which consent shall not unreasonably be withheld.
Licensee shall indemnify UFRF against




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 11 of 24









 












	 	 	any order for costs, attorney’s fees or judgments on third party claims arising out of
enforcement of the patent that may be made against UFRF in such proceedings. Nothing in this
Agreement expressly or implicitly authorizes Licensee to grant licensees under the Licensed
Patents within the Licensed Field and Licensed Territory, or obligates Licensee to grant
sublicenses to settle any infringement claim.
	 
	8.3	 	If within six (6) months after having been notified of any alleged infringement, Licensee is
unsuccessful in persuading the alleged infringer to desist, and either has not brought and is
not diligently prosecuting an infringement action, or if Licensee notifies UFRF at any time
prior thereto of its intention not to bring suit against any alleged infringer, then, and in
those events only, UFRF shall have the right, but shall not be obligated, to prosecute at its
own expense any infringement of the Licensed Patents. UFRF may, for such propose, name
Licensee as party plaintiff. No settlement, consent judgment or other voluntary final
disposition of the suit, in which the patent in suit is admitted to being invalid or
unenforceable or, by which UFRF receives non-monetary consideration, may be entered into
without the consent of Licensee, which consent shall not unreasonably be withheld.
	 
	8.4	 	In the event that Licensee undertakes enforcement of the Licensed Patents by litigation, any
recovery of damages (but not attorney’s fees) by Licensee for any such suit shall be applied
first in the satisfaction of any unreimbursed expenses and legal fees of Licensee relating to
the suit, and next toward reimbursement of UFRF for any unreimbursed legal fees and expenses.
The balance remaining from any such recovery shall be divided between Licensee and UFRF with
[***]% for Licensee and [***]% for UFRF.
	 
	8.5	 	In the event that UFRF undertakes enforcement of the Licensed Patents by litigation, any
recovery of damages (but not attorney’s fees) by UFRF for any such suit shall be applied
first in satisfaction of any unreimbursed expenses and legal fees of UFRF relating to the
suit, and next toward reimbursement of Licensee for any unreimbursed legal fees and expenses.
The balance remaining from any such recovery shall be divided between Licenses and UFRF with
[***]% for Licensee and [***]% for UFRF.
	 
	8.6	 	In any infringement suit that one party institutes to enforce the Licensed Patents pursuant
to this Agreement, the other party hereto shall, at the request and expense of the party
initiating such suit, cooperate in all respects and, to the extent possible, have its
employees testify when requested and make available relevant records, papers, information,
samples, specimens, and the like.
	 
	8.7	 	In the event a declaratory judgment action alleging invalidity or noninfringement of any of
the Licensed Patents shall be brought against Licensee, UFRF, at its option, shall have the
right, within thirty (30) days after commencement of such action, to intervene at its own
expense.
	 
	8.8	 	In the event Licensee contests the validity of any Licensed Patents, Licensee shall continue
to pay royalties and make other payments pursuant to this Agreement with




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 12 of 24









 












	  	 	respect to that patent as if such contest
were not underway until the patent is
adjudicated invalid or unenforceable by a
court of last resort.





Section 9 Term and Termination





	9.1	 	The term of this license shall begin on the Effective Date of this Agreement and continue
until the expiration of all patents included in the Licensed Patents, unless terminated
earlier as provided below.
	 
	9.2	 	Licensee may terminate this Agreement at any time by giving at least sixty (60) days written
notice of such termination to UFRF.
	 
	9.3	 	UFRF may terminate this Agreement by giving Licensee at least thirty (30) days written
notice if Licensee fails to make any payment due under Section 4.1.1 within 30 days of the
payment due date or knowingly provides any material false report. Termination under this
Section 9.3 will take effect 30 days after written notice by UFRF unless Licensee cures the
breach in that 30-day period, provided however that Licensee’s reliance on the cure provision
of this Section 9.3 more than three (3) times in any calendar year for amounts properly due
and owing shall be grounds for immediate termination at the sole discretion of UFRF upon
written notice to Licensee.
	 
	9.4	 	Upon the termination of this Agreement for any reason, nothing herein shall be construed to
release either party from any obligation that matured prior to the effective date of such
termination. Licensee shall remain obligated to provide an accounting for and to pay
royalties earned prior to the date of termination. Licensee may, however, after the effective
date of such termination, sell all Licensed Products, and complete Licensed Products in the
process of manufacture at the time of such termination and sell the same, provided that
Licensee shall remain obligated to provide an accounting for and to pay royalties thereon.
The following sections will also survive termination and continue in effect:





Section 10 Assignment





	10.1	 	This Agreement may not be transferred or assigned by Licensee except with the prior written
consent of UFRF, except in connection with the sale of substantially all of the assets of the
Licensee’s business relating to this Agreement. Licensee may, however, assign its rights
under the licenses of Section 2.3 without the consent of UFRF. This Agreement is assignable
to any division of Licensee, any majority stockholder of Licensee, and/or any subsidiary of
Licensee in which 51 percent of the outstanding stock or other controlling interest is owned
by Licensee. If there is an assignment of rights, a contemporaneous delegation is deemed to
have occurred, and the assignee is deemed to have assumed the assignor’s performance
obligations in favor of the nonassigning party.






	10.2	 	This Agreement binds and benefits the parties and their respective heirs, executors,
administrators, legal representatives, successors and permitted assigns.




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 13 of 24









 











Section 11 Dispute Resolution Procedures





	11.1	 	Mandatory Procedures. In the event either party intends to file a lawsuit against
the other with respect to any matter in connection with this Agreement, compliance with the
procedures set forth in this Section shall be a condition precedent to the filing of such
lawsuit, other than for injunctive relief. Either party may terminate
this Agreement as
provided in this Agreement without following the procedures set forth in this section.






	 	11.1.1	 	When a party intends to invoke the procedures set forth in this section, written
notice shall be provided to the other party. Within thirty (30) days of the date of
such notice, the parties agree that representatives designated by the parties shall
meet at mutually agreeable times and engage in good faith negotiations at a mutually
convenient location to resolve such dispute.
	 
	 	11.1.2	 	If the parties fail to meet within the time period set forth in section 11.1.1 above
or if either party subsequently determines that negotiations between the
representatives of the parties are at an impasse, the party declaring that the
negotiations are at an impasse shall give notice to the other party stating with
particularity the issues that remain in dispute.
	 
	 	11.1.3	 	Not more than 15 days after the giving of such notice of issues, each party shall
deliver to the other party a list of the names and addresses of at least three
individuals, any one of whom would be acceptable as a neutral advisor in the dispute
(the “Neutral Advisor”) to the party delivering the list. Any individual proposed as a
Neutral Advisor shall have experience in determining, mediating, evaluating, or trying
intellectual property litigation and shall not be affiliated with the party that is
proposing such individual.
	 
	 	11.1.4	 	Within 10 days after delivery of such lists, the parties shall agree on a Neutral
Advisor. If they are unable to so agree within that time, within 5 days, they shall
each select one individual from the lists. Within 5 days, the individuals so selected
shall meet and appoint a third individual from the lists to serve as the Neutral
Advisor. Within 30 days after the selection of a Neutral Advisor:






	 	(a)	 	The parties shall each provide a written statement of the issues
in dispute to the Neutral Advisor.
	 
	 	(b)	 	The parties shall meet with the Neutral Advisor in Gainesville,
Florida on a date and time established by the Neutral Advisor. The meeting must
be attended by persons authorized to make final decisions on behalf of each
party with respect to the dispute. At the meeting, each party shall make a
presentation with respect to its position concerning the dispute. The Neutral
Advisor will then discuss the issues separately with each party and attempt to
resolve all issues in the dispute. At the meeting, the parties will enter into
a written settlement agreement with respect to all issues that are resolved.
Such settlement agreement shall




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 14 of 24









 












	 	  	 	be final and binding with respect to such resolved issues and may not be the
subject of any lawsuit between the parties, other than a suit for
enforcement of the settlement agreement.






	 	11.1.5	 	The expenses of the neutral advisor shall be shared by the parties equally. All other
out-of-pocket costs and expenses for the alternative dispute resolution procedure
required under this Section shall be paid by the party incurring the same.
	 
	 	11.1.6	 	Positions taken and statements made during this alternative dispute resolution
procedure shall be deemed settlement negotiations and shall not be admissible for any
purpose in any subsequent proceeding.






	11.2	 	Failure to Resolve Dispute. If any issue is not resolved at the meeting with the
Neutral Advisor, either party may file appropriate administrative or judicial proceedings
with respect to the issue that remains in dispute. No new issues may be included in the
lawsuit without the mandatory procedures set forth in this section having first been
followed.
	 
	11.3	 	Survival. The provisions of this Section shall survive termination of this Agreement.





Section 12 Product Liability; Conduct of Business





	12.1	 	Licensee and its Sublicensee(s) shall, at all times during the term of this Agreement and
thereafter, indemnify, defend and hold UFRF, the Florida Board of Governors, the University of
Florida Board of Trustees, the University of Florida, and each of their directors, officers,
employees, and agents, and the inventors of the Licensed Patents, regardless of whether such
inventors are employed by the University of Florida at the time of the claim, harmless
against all claims and expenses, including legal expenses and reasonable attorneys fees,
whether arising from a third party claim or resulting from UFRF’s enforcement of this
indemnification clause against Licensee, arising out of the death of or injury to any person
or persons or out of any damage to property and against any other claim, proceeding, demand,
expense and liability of any kind whatsoever (other than patent infringement claims)
resulting from the production, manufacture, sale, use, lease, comsumption, marketing, or
advertisement of Licensed Products or Licensed Process(es) or arising from any right or
obligation of Licensee hereunder, except, however, to the extent such liability arises out of
the gross negligence, reckless or willful misconduct of any of the University Entities.
Notwithstanding the above, UFRF at all times reserves the right to retain counsel of its own
to defend UFRF’s, the Florida Board of Governors’, the University of Florida Board of
Trustees’, the University of Florida’s and the inventor’s Interests.






	12.2	 	Licensee warrants that it now maintains and will continue to maintain liability insurance
coverage appropriate to the risk involved in producing, manufacturing, clinical trials,
selling, marketing, using, leasing, consuming, or advertising the products subject to this
Agreement and that such insurance coverage includes UFRF, the Florida Board of Governors, the
University of Florida Board of Trustees, the




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 15 of 24









 












	  	 	University of Florida, and the
inventors of the Licensed Patents as
additional insureds. Within ninety
(90) days after the execution of this
Agreement and thereafter annually
between January 1 and January 31 of
each year, Licensee will present
evidence to UFRF that the coverage is
being maintained with UFRF, the
University of Florida, and its
inventors included as additional
insureds. In addition, Licensee
shall provide UFRF with at least
thirty (30) days prior written notice
of any change in or cancellation of
the insurance coverage.





Section 13 Use of Names





	13.1	 	Licensee and its Sublicensee(s) shall not use the names of UFRF, or of the University of
Florida, nor of any of either institution’s employees, agents, or affiliates, nor the name of
any inventor of Licensed Patents, nor any adaptation of such names, in any sales promotion,
advertising, or any other form of publicity without the prior written approval of UFRF in
each case, except that Licensee may state that it has received a license from UFRF under one
or more of the patents and/or applications comprising the Licensed Patents.





Section 14 Miscellaneous





	14.1	 	This Agreement shall be construed in accordance with the internal laws of the State of
Florida.
	 
	14.2	 	The parties hereto are independent contractors and not joint
venturers or partners.
	 
	14.3	 	Licensee shall ensure that it applies patent markings that meet all requirements of U.S.
law, 35 U.S.C. §287, with respect to all Licensed Products subject to this Agreement.
	 
	14.4	 	This Agreement constitutes the full understanding between the parties with reference to the
subject matter hereof, and no statements or agreements by or between the parties, whether
orally or in writing, shall vary or modify the written terms of this Agreement. Neither
party shall claim any amendment, modification, or release from any provisions of this
Agreement by mutual agreement, acknowledgment, or otherwise, unless such mutual agreement is
in writing, signed by the other party, and specifically states that it is an amendment to
this Agreement.
	 
	14.5	 	Licensee shall not grant a direct security interest in any of the Intellectual Property
Rights granted hereunder to any third party absent prior written approval of UFRF. For
avoidance of doubt, Licensee’s grant of a general security interest in the assets of Licensee
(without specific reference to the Intellectual Property Rights) shall not constitute a grant
implicating the approval requirement of this Section 14.5.
	 
	14.6	 	Licensee acknowledges that it is subject to and agrees to abide by the United States laws and
regulations (including the Export Administration Act of 1979 and Arms Export Contract Act)
controlling the export of technical data, computer software, laboratory prototypes,
biological material, and other commodities. The transfer of




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 16 of 24









 












	 	 	such items may require a license from the cognizant agency of the U.S. Government or written
assurances by Licensee that it shall not export such items to certain foreign countries
without prior approval of such agency. UFRF neither represents that a license is or is not
required or that, if required, it shall be issued.
	 
	14.7	 	Licensee is responsible for any and all wire/bank fees associated with all payments due to
UFRF pursuant to this agreement.
	 
	14.8	 	Waivers. The parties may waive this Agreement only by a writing executed by the
party or parties against whom the waiver is sought to be enforced. No failure or delay in
exercising any right or remedy, or in requiring the satisfaction of any condition, under this
Agreement, and no act, omission or course of dealing between the parties, operates as a
waiver or estoppel of any right, remedy or condition. A waiver made in writing on one
occasion is effective only in that instance and only for the purpose stated. A waiver once
given is not to be construed as a waiver on any future occasion or against any other Person.
	 
	14.9	 	Severability. If any provision of this Agreement is determined to be invalid,
illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if
the essential terms and conditions of this Agreement for each party remain valid, binding,
and enforceable.
	 
	14.10	 	Captions. The descriptive headings of the Articles, Sections and subsections of
this Agreement are for convenience only, do not constitute a part of this Agreement, and do
not affect this Agreement’s construction or interpretation.
	 
	14.11	 	Further Assurances. Each party and its officers and directors shall use all
commercially reasonable efforts to take, or cause to be taken, all further actions necessary
or desirable to carry out the purposes of this Agreement provided that all reasonable out of
pocket costs or expenses associated therewith shall be borne by the requesting such action.





Section 15 Notices





	15.1	 	Any notice required to be given pursuant to the provisions of this Agreement shall be in
writing and shall be deemed to have been given when: delivered personally; if sent by
facsimile transmission, when receipt thereof is acknowledged at the facsimile number of the
recipient as set forth below; the second day following the day on which the notice has been
delivered prepaid to a national air courier service; or five (5) business days following
deposit in the U.S. mail if sent certified mail, return receipt requested:
	 
	 	 	If to the University of Florida Research Foundation, Inc.:






			
	                    	 	President

University of Florida Research Foundation, Inc.





 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 17 of 24









 









			
	                    	 	223 Grinter Hall

University of Florida

Post Office Box 115500

Gainesville, FL 32611-5500

Facsimile Number: 352-846-0491


with a copy to:


Office of Technology Licensing

Attn: Director

308 Walker Hall

University of Florida

Post Office Box 115500

Gainesville, Florida 32611-5500

Facsimile Number: 352-392-6600





If to Licensee:





			
	                    	 	MAKO Surgical Corp.

Attention: President

2555 Davie Road

Fort Lauderdale, Florida 33317

Facsimile Number: (954) 927-0446


with a copy to:


General Counsel

MAKO Surgical Corp.

2555 Davie Road

Fort Lauderdale, Florida 33317

Facsimile Number: (954) 927-0446





Section 16 Contract Formation and Authority





	16.1	 	No agreement between the parties shall exist unless the duly authorized representative of
Licensee and the Director of the Office of Technology Transfer of UFRF have signed the
document within thirty (30) days of the Effective Date written on the first page of this
Agreement.
	 
	16.2	 	UFRF and Licensee hereby warrant and represent that the persons signing this Agreement have
authority to execute this Agreement on behalf of the party for whom they have signed.
	 
	16.3	 	Force Majeure. No default, delay, or failure to perform on the part of Licensee or
UFRF shall be considered a default, delay or failure to perform otherwise chargeable
hereunder, if such default, delay or failure to perform is due to causes beyond either




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 18 of 24









 












	  	 	party’s reasonable control including, but not limited to:
hurricanes, floods, strikes, lockouts, or inactions of
governmental authorities, epidemics, war, embargoes, fire,
earthquake, acts of God, or default of common carrier. In
the event of such default, delay or failure to perform, any
date or times by which either party is otherwise scheduled
to perform shall be extended automatically for a period of
time equal in duration to the time lost by reason of the
excused default, delay or failure to perform.





Section 17 United States Government Interests





	17.1	 	It is understood that if the United States Government (through any of its agencies or
otherwise) has funded research during the course of or under which any of the inventions of
the Licensed Patents were conceived or made, the United States Government is entitled, as a
right, under the provisions of 35 U.S.C. §202-212 and applicable regulations of Title 37 of
the Code of Federal Regulations, to a non-exclusive, nontransferable, irrevocable, paid-up
license to practice or have practiced the inventions of such Licensed Patents for
governmental purposes. Any license granted to Licensee in this Agreement shall be subject to
such right.
	 
	17.2	 	Licensee agrees that for Licensed Products covered by the Licensed Patents that are subject
to the non-exclusive royalty-free license to the United States Government, said Licensed
Products will be manufactured substantially in the United States. Licensee further agrees
that it shall abide by all the requirements and limitations of U.S. Code, Title 35, Chapter
18, and implementing regulations thereof, for all patent applications and patents invented in
whole or in part with federal money.





Section 18 Confidentiality





	18.1	 	All information exchanged between the parties pursuant to this Agreement will be subject to
the Non-Disclosure Agreement, which Agreement is incorporated herein by reference, except
that each party’s obligations with respect to any particular piece of Confidential
Information shall continue a period of ten (10) years from the date of receipt of the
particular piece of Confidential Information, and thereafter terminate. This Section 18 will
survive termination of this Agreement.





Section 19 University Rules and Regulations





	19.1	 	Licensee understands and agrees that University of Florida personnel who are engaged by
Licensee, whether as consultants, employees or otherwise, or who possess a material financial
interest in Licensee, are subject to the University of Florida’s rule regarding outside
activities and financial interests set forth in Florida Administrative Code Rule 6C1-1.011,
the University of Florida’s Intellectual Property Policy, and a monitoring plan which
addresses conflicts of interests associated therewith. Any term or condition of an agreement
between Licensee and such University of Florida personnel which seeks to vary or override
such personnel’s obligations to the University of Florida may not be enforced against such
personnel, the University of Florida or UFRF, without the express written consent of an
individual authorized to




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 19 of 24









 












	  	 	vary or waive such obligations on behalf of the University of Florida and UFRF.
Furthermore, should an interest of Licensee conflict with the interests of the University of
Florida, University of Florida personnel are obligated to resolve such conflicts according
to the guidelines and policies set forth by the University of Florida.





[SIGNATURE PAGE FOLLOWS]




 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 20 of 24









 








IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the dates indicated
below.



	 	 	 	 	 
	 	UNIVERSITY OF FLORIDA RESEARCH FOUNDATION, INC.

 	 
	 	/s/ David L. Day
 	 
	 	David L. Day 	 
	 	Director, Office of Technology Licensing 	 
	 



Date: 8/16, 2007




	 	 	 	 	 
	 	MAKO SURGICAL CORP.

 	 
	 	/s/ Maurice R. Ferré
 	 
	 	Maurice R. Ferré, MD

President & Chief Executive Officer 	 
	 



Date: 8/16, 2007





 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 21 of 24









 














 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 22 of 24









 







					
	Total Royalty:                     
	 	Conversion Rate:                     
	 	Royalty in U.S. Dollars: $                    








The following royalty forecast is non-binding and for UFRF’s internal planning purposes only:




Royalty
Forecast Under This Agreement: Next Quarter:       Q2:      Q3:       Q4:      







* On
a separate page, please indicate the reasons for returns or other adjustments if significant.




Also
note any unusual occurrences that affected royalty amounts during this period.




To
assist UFRF’s forecasting, please comment on any significant expected trends in sales volume.










 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 23 of 24









 








Appendix B — Amendment in Research Agreement




[as attached]





 





[***] Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.


Page 24 of 24