EX-10.28 Supply Agreement w/Trigon Incorporated



 





EXHIBIT 10.28




EXECUTION VERSION




SUPPLY AGREEMENT




     This Supply Agreement (the “Agreement”), is made and entered into as of the last date
of execution appearing on the signature page hereto (the “Effective Date”), by and between
Trigon Incorporated, a Pennsylvania corporation, having its principal place of business in
McMurray, Pennsylvania and which operates the business division it calls “Stelkast” (“STELKAST”)
and MAKO Surgical Corp., a Delaware corporation, having its principal place of business in
Hollywood, Florida (“MAKO”). STELKAST and MAKO are sometimes referred to herein individually as a
“Party” and collectively as the “Parties.”



Recitals




     WHEREAS, STELKAST has developed a certain “Implant” (as defined below);



     WHEREAS, STELKAST and MAKO entered into that certain Binding Letter of Intent, dated April 27,
2005 in which STELKAST agreed to grant to MAKO a non-exclusive, worldwide license to certain rights
relating to the Implant (the “LOI”); and



     WHEREAS, STELKAST and MAKO have concurrently entered into that certain License Agreement
(“License Agreement”), by which STELKAST licenses MAKO certain rights to relating to the
Implant so that it may make, use and sell the Implant independently of STELKAST;



     WHEREAS, during a Transition Period (as defined below) MAKO desires to purchase from STELKAST,
and STELKAST is willing to supply, certain Products (as defined below), under the terms and
conditions of this Agreement;



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and undertakings
set forth herein, and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:



ARTICLE I

Definitions




     1.1 An “Affiliate” of a party means 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 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 Effective Period of
this Agreement. However, the entity will be considered an Affiliate only for the time during which
such control exists.



     1.2 “Agreement” means this Supply Agreement, as it may be amended from time to time.



     1.3 “CGMP Regulations” means the current good manufacturing practices (“CGMP”)
promulgated by the FDA, as amended, including those currently set out in Parts 210 and 211 of Title
21 of the Code of Federal Regulations.





 




			
	[***]	 	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.






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     1.4 “Delivery Date” means a date for which delivery of Product is properly requested
in a purchase order.



     1.5 “Effective Date” has the meaning given in the preamble.



     1.6 “FDA” means the United States Food and Drug Administration.



     1.7 “First Commercial Sale” shall mean the first commercial sale by MAKO or its
Affiliates of the Product.



     1.8 “Implant,” as used in both a singular and plural context, means the unicondylar
knee implant system and all components thereof, including prostheses and related medical
instruments and surgical techniques, developed by STELKAST and used for a single procedure.



     1.9 “License Agreement” has the meaning given to it in the recitals.



     1.10 “Manufacturing Price” regarding the Product means [***] Dollars ($[***]), The
Manufacturing Price of each component of the Product is a set forth in Section 3.1 hereto.
Manufacturing Price regarding instruments used with the Product shall mean STELKAST”S actual cost
for such instruments.



     1.11 “Product,” as used in both a singular and plural context, means the Implant.



     1.12 “Product Approval” means final FDA approval to market commercially in the U.S.A.
the specified Product for use in humans



     1.13 “Site Services” has the meaning set forth in Section 4.3.



     1.14 “Specifications” means he description and specification for the Implant contained
in the specifications and technical documents relating to the manufacture, operation, use and
implantation of the Implant (including all prior versions and the most current version of it) that
are in the possession of STELKAST or its employees, representatives or agents on or before the
Effective Date, including without limitation FDA design control documents DHF, DMR (design
requirement and criteria, specified requirements, V&V, design transfer), clinical data and implant
follow-ups, and manufacturing specifications and know.



     1.15 “Transition Period” means the period between the Effective Date and the date on
which MAKO is able and ready to make and sell a unicondylar knee implant independently, under its
own label, with all necessary regulatory approvals in the United States, but in any case ending not
later than twenty-four (24) months after the Effective Date.



ARTICLE II

Sale And Purchase Of Product




     2.1 Sale and Purchase.



     2.2 During the Transition Period, STELKAST, within the limitations contained in this Article,
agrees to use best efforts to sell to MAKO such quantities of Product as MAKO may



 




			
	[***]	 	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.





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order in
accordance herewith. It is understood that STELKAST shall have the right in connection with supply
hereunder to contract with such third parties as STELKAST deems advisable to manufacture Product,
provided, however, that STELKAST shall remain fully responsible hereunder.




     2.3 STELKAST will not to solicit or supply, without the written consent of MAKO, Product to
parties to whom MAKO sells Products.



     2.4 Quantity; Forecasts.



     (a) With respect to each Product, MAKO shall deliver to STELKAST (i) at least four (4) full
calendar quarters prior to the calendar quarter in which the First Commercial Sale of such Product
is projected to occur, a forecast of MAKO’s quantity requirements for such Product for the calendar
quarter in which the First Commercial Sale of such Product is projected to occur and (ii) at least
one (1) full calendar quarter prior to the calendar quarter in which the First Commercial Sale of
such Product is projected to occur, MAKO’s firm order and Delivery Dates for such Product for such
calendar quarter and a good-faith forecast of its quantity requirements for such Product for the
next three (3) calendar quarters, provided that no forecasts or orders need be given for any period
after the term of this Agreement. Thereafter, MAKO shall deliver to STELKAST at or prior to the
end of each calendar quarter, MAKO’s firm order and Delivery Dates for such Product for the second
calendar quarter following such calendar quarter and a forecast of its quantity requirements for
such Product for the three (3) following calendar quarters. If a required forecast or order for a
quarter is not timely submitted for a Product, the immediately preceding forecast for that quarter
shall become the new forecast or order; if there is no preceding forecast for a quarter, the
forecast or order for the immediately preceding quarter shall become the forecast or order.



     (b) For each quarterly forecast of Product, the amount of any Product forecasted for delivery
in the first of the three calendar quarters forecasted shall be not less than [***] percent
([***]%) or more than [***] percent ([***]%) of the most recent previous forecast for such quarter.



     (c) MAKO’s forecasts and orders will reflect its good-faith expectations of customer demand
and MAKO will act in a commercially reasonable manner to schedule orders to avoid creating
production capacity problems for STELKAST.



     2.5 Delivery.



     (a) All Products delivered to MAKO will be F.O.B. STELKAST’s plant or other place of shipment.
STELKAST will use best efforts deliver Product within 5 days of the applicable Delivery Dates and
assist MAKO in arranging any desired insurance (in amounts that MAKO shall determine) and
transportation, via air freight unless otherwise specified in writing, to any destinations
specified in writing from time to time by MAKO. All customs, duties, costs,
taxes, insurance premiums, and other expenses relating to such transportation and delivery
will be at MAKO’s expense.




 




			
	[***]	 	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.





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     (b) STELKAST will package the Products in the manner requested by MAKO. STELKAST will include
with each shipment copies of all applicable quality and testing records, which shall be in a form
acceptable for FDA submission.



     2.6 Rejection of Product in Case of Nonconformity.



     (a) MAKO may reject any portion of any shipment of Product that (i) does not conform to the
description or Specifications, (ii) is adulterated or misbranded within the meaning of the Federal
Food, Drug and Cosmetic Act (the “Act”), (iii) does not comply with an order for the
Products, or (iv) does not comply with the CGMP Regulations.



     (b) In order to reject a shipment, MAKO must (i) give notice to STELKAST of MAKO’s intent to
reject the shipment within thirty (30) days of receipt together with a written indication of the
reasons for such possible rejection, and (ii) as promptly as reasonably possible thereafter,
provide STELKAST with notice of final rejection and the full basis therefore. After notice of
intent to reject is given, MAKO shall cooperate with STELKAST in determining whether rejection is
necessary or justified. If no such notice of intent to reject is timely received, MAKO shall be
deemed to have accepted such delivery of Product. However, in the case of Products having latent
defects which upon diligent examination by MAKO upon receipt could not have been discovered, MAKO
must give notice of MAKO’s intent to reject within thirty (30) days after discovery of such
defects.



     (c) In any event, MAKO must pay for the shipment as otherwise provided herein and will be
entitled to a refund of the purchase price (together with insurance and freight charges) of
properly rejected Products at the time they are ultimately rejected, provided that if STELKAST
disputes the rejection, refund shall be made, if at all, at the time the dispute is finally
resolved. STELKAST shall notify MAKO as promptly as reasonably possible whether it accepts MAKO’s
basis for any rejection.



     (d) Whether or not STELKAST accepts MAKO’s basis for rejection, promptly on receipt of a
notice of rejection, STELKAST shall use its reasonable efforts, at MAKO’s request, to provide
replacement Product which shall be purchased by MAKO as provided in this Agreement.



     (e) Unless STELKAST requests the return to it of a rejected batch within sixty (60) days of
receipt of MAKO’s notice of rejection, MAKO shall destroy such batch promptly and provide STELKAST
with certification of such destruction. MAKO shall, upon receipt of STELKAST’s request for return,
promptly dispatch said batch to STELKAST, at STELKAST’s cost.



     2.7 MAKO’s Obligations.



     (a) MAKO agrees to ascertain and comply with all applicable laws and regulations and standards
of industry or professional conduct in connection with the use, distribution or
promotion of the Products, including without limitation, those applicable to product claims,
labeling, approvals, registrations and notifications.




 




			
	[***]	 	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.





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     (b) MAKO will work diligently to establish an independent product source for Products,
including obtaining necessary FDA approvals for Products made under its authority.



     (c) For the avoidance of any doubt, MAKO has no obligation to purchase Products from STELKAST.



ARTICLE III

Price And Payments




     3.1 Price. MAKO shall pay to STELKAST the Manufacturing Price for Product purchased under
this Agreement. The Manufacturing Price for each of the Product Components is as follows:



	 	 	 	 	 
	Part	 	Cost	 
	 
	(a) Stelkast unicondylar knee; Femoral component
	 	$	[***]	 
	(b) Stelkast unicondylar knee; Inlay tibial component
	 	$	[***]	 
	(c) Stelkast Instruments
	 	 	[***]	 






     3.2 Method of Payment. All payments due hereunder to STELKAST shall be paid to STELKAST in
United States dollars in the United States not later than 45 days following the date of the
applicable invoice.



ARTICLE IV

Branding & Site Services




     4.1 Labeling. MAKO may specify, at the time of ordering, whether Products will bear a
STELKAST label or a MAKO label. If MAKO orders Products with MAKO labels, MAKO must first have
provided to STELKAST either labels suitable for placing on STELKAST’s packaging for the Products or
packaging suitable for the Products.



     4.2 Limited License. STELKAST grants to MAKO a limited, non-exclusive license to use the mark
“STELKAST” and any other trade names, trademarks and trade dress used on or in connection with
Products purchased by MAKO from STELKAST pursuant to this Agreement, to refer to the Products and
to STELKAST in connection with the marketing, advertising, distribution, sale and use of the
Products. STELKAST further grants to MAKO the right to create, reproduce, publish, and distribute
images and renderings (including photographs and video) of the Products and Packaging and any
accompanying documentation.



     4.3 Site Services. STELKAST shall provide MAKO site management support services at UPMC
Shadyside in Pittsburgh PA (the “Site Services”) when and if reasonably requested by MAKO.
Site Services shall include one or more of inventory management, billing, clinical support during
each surgical procedure, and maintenance of a service contract with hospital. STELKAST will charge
MAKO a fixed sum of $[***] per procedure performed for any and all such clinical support services
provided to MAKO. In all cases where STELKAST
provides Site Services on behalf of MAKO, STELKAST shall tender to MAKO within thirty (30)
days the net proceeds paid to STELKAST for such procedure after deducting only the Manufacturing
Price and the Site Services.




 




			
	[***]	 	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.





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ARTICLE V

Termination, Rights And Obligations Upon Termination




     5.1 Term. This Agreement shall continue in effect (the “Effective Period”) until the
earlier of 24 months from the Effective Date or the end of the Transition Period.



     5.2 Termination by Mutual Agreement. This Agreement may be terminated upon mutual written
agreement of the Parties.



     5.3 Termination for Default. If either Party materially defaults in the performance of any
material agreement, condition or covenant of this Agreement and such default or noncompliance shall
not have been remedied, or steps initiated to remedy the same to the other Party’s reasonable
satisfaction, within sixty (60) days (or 30 days in the case of non-payment) after receipt by the
defaulting Party of a notice thereof from the other Party, the Party not in default may terminate
this Agreement.



     5.4 Termination of License. This Agreement will terminate automatically upon termination of
the License Agreement.



     5.5 Rights and Obligations on Expiration or Termination. Except to the extent expressly
provided to the contrary, the following provisions shall survive the termination of this Agreement:
Articles VI and VII. Any rights of STELKAST to payments accrued through termination as well as
obligations of the Parties under firm orders for purchase and delivery of Products at the time of
such termination shall remain in effect, except that in the case of termination under Section 5.3,
the terminating Party may elect whether obligations under firm orders will remain in effect and
except that STELKAST will have no obligation with respect to Delivery Dates more than 6 months
after termination.



ARTICLE VI

Representation and Warranties




     6.1 STELKAST represents, warrants and covenants to MAKO as to the following as of the
Effective Date:



     (a) When shipped to MAKO by STELKAST, the Products (i) will conform in all respects to the
Specifications, (ii) will not be adulterated or misbranded within the meaning of the Act, and (iii)
will be manufactured in accordance with CGMP Regulations. STELKAST further represents and warrants
to MAKO that, to the actual knowledge of Stelkast, on the Effective Date and any date the Products
shall be shipped to MAKO (y) the Products and their sale, marketing and use in their intended
manner will not infringe any patent, copyright or, or misappropriate any trade secrets, of any
third party, and (z) any branding or trade dress appearing on the Products, other than MAKO’s marks
and trade dress, will not cause infringement of any trademark, trade name, service mark, or trade
dress of any third party, or
constitute unfair competition or violate any rights of publicity or privacy when sold or
advertised.



 




			
	[***]	 	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.





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     (b) STELKAST has the requisite institutional knowledge and commercially adequate expertise to
provide the technical assistance and clinical support services it is offering and/or pledging to
provide to MAKO under this Agreement.



     (c) Insurance. STELKAST maintains adequate insurance covering the Product (including product
liability and commercial general liability insurance), as would be acquired and maintained by a
reasonable and prudent businessperson carrying on a similar line of business, but in no case for an
amount of less than Four Million Dollars ($4,000,000) per claim and/or $5,000,000 in the aggregate
(“Adequate Insurance”). Such Adequate Insurance shall at all times during the Effective
Period and for not less than five (5) years thereafter insure MAKO, its Board of Directors,
officers, employees, agents and consultants as insured parties.



     6.2 MAKO represents, warrants and covenants to STELKAST that as of and following the Effective
Date MAKO maintains adequate insurance (including product liability and commercial general
liability insurance), as would be acquired and maintained by a reasonable and prudent
businessperson carrying on a similar line of business, but in no case for an amount of less than
Adequate Insurance. Such Adequate Insurance shall at all times during the Effective Period and for
not less than five (5) years thereafter insure STELKAST, its Board of Directors, officers,
employees, agents and consultants as insured parties.



     6.3 Disclaimers.



     (a) Other than the representations, warranties and covenants expressly made in this Agreement,
neither Party, nor any of its Affiliates, make any representations or extend any warranties of any
kind, express or implied. STELKAST and MAKO each disclaim all implied warranties, including
without limitation warranties of merchantability, and fitness for a particular purpose.



     (b) EXCEPT IN CONNECTION WITH INDEMNIFICATION FOR DAMAGES AWARDED FOR THIRD PARTY CLAIMS OF
PERSONAL INJURY PURSUANT TO ARTICLE VII, OR AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, IN
NO EVENT WILL MAKO OR STELKAST BE LIABLE FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
THEORY, INCLUDING CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.



ARTICLE VII

Indemnification




     7.1 Indemnification. STELKAST agrees to indemnify in respect of, and hold MAKO and its
officers, directors, employees and agents harmless against, any and all damages, claims,
deficiencies, losses, including taxes, and all expenses (including interest, penalties, and
reasonable attorneys’ and accountants’ fees and disbursements but reduced by any tax savings,
benefits or offsets to which any party shall be entitled directly or indirectly by reason thereof)
(collectively “Damages”) resulting from any misrepresentation, breach of warranty, or
failure to perform any covenant or agreement on the part of STELKAST under this Agreement.




 




			
	[***]	 	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.





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STELKAST further agrees to indemnify in respect of, and hold MAKO and its respective officers,
directors, employees and agents harmless against, all Damages resulting from personal injuries and
deaths from the use of Products manufactured, produced, sold or marketed by STELKAST or its
Affiliates, except to the extent such injury or death results from (1) the negligence, gross
negligence or intentional misconduct of MAKO and its employees, officers and directors or any other
persons using the Products, or (ii) a change to the Product after it has been manufactured by
STELKAST or the use of a technique with respect to the Product other than a technique developed
and/or endorsed by STELKAST.




     7.2 MAKO agrees to indemnify in respect of, and hold, STELKAST and its officers, directors,
employees and agents harmless against, any and all Damages resulting from any misrepresentation,
breach of warranty, or failure to perform any covenant or agreement on the part of MAKO under this
Agreement. MAKO further agrees to indemnify in respect of, and hold STELKAST and its respective
officers, directors, employees and agents harmless against, all Damages resulting from personal
injuries and deaths from the use of any products other than the Products that are manufactured,
produced, sold or marketed by MAKO or its Affiliates, except to the extent such injury or death
results from the negligence, gross negligence or intentional misconduct of STELKAST and its
employees, officers and directors.



ARTICLE VIII

Miscellaneous Provisions




     8.1 Assignment. Neither Party may assign or delegate its obligations under this Agreement
absent the written consent of the other party, except that no such consent will be required for
succession by merger, consolidation, sale of all or substantially all of the assets, or change of
control, but only if the assignee, successor or surviving entity agrees to be bound in writing to
all of its terms and conditions. This Agreement will be binding on successors in interest and
permitted assigns. An assignment other than as expressly permitted by this Section 8.1 will be
void and shall constitute a material breach of this Agreement.



     8.2 Notices. All notices and other communications which are required or which may be given
under the provisions of this Agreement will be in writing and may be delivered (a) personally, (b)
by facsimile transmission, (c) expedited delivery service with proof of delivery or (d) sent by
United States Mail, postage prepaid, registered or certified, return receipt requested, addressed
as follows:



	 	 	 	 	 
	 

	 	If to STELKAST:
	 	Trigon Incorporated
	 

	 	 	 	200 Hidden Valley Road
	 

	 	 	 	McMurray, PA 15317
	 

	 	 	 	Fax: (724) 941-5984
	 

	 	 	 	Attention: Peter N. Stephans
	 
	 	 	 	 
	 

	 	If to MAKO:
	 	MAKO Surgical Corp.
	 

	 	 	 	2901 Simms St.
	 

	 	 	 	Hollywood, FL 33020
	 

	 	 	 	Fax: (954) 927-0446

Attention: General Counsel







 




			
	[***]	 	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.





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or to such other address designated by the Parties as provided above. Any such notice will be
deemed to have been given either at the time of personal delivery or, in the case of delivery
service or mail, as of the date of first attempted delivery at the address and in the manner
provided herein.




     8.3 Choice of Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, EXCLUSIVE OF ITS CONFLICTS OF LAW PRINCIPLES.



     8.4 Captions. The captions, headings, and arrangements used in this Agreement are for
convenience only and do not in any way affect, limit, amplify, or modify its terms and provisions.



     8.5 No Strict Construction. This Agreement is the result of substantial negotiations among
the Parties and their counsel and has been prepared by their joint efforts. Accordingly, the fact
that counsel to one Party or another may have drafted this Agreement or any portion of this
Agreement is immaterial and this Agreement will not be strictly construed against any Party.



     8.6 Severability and Reformation. Wherever possible, each provision of this Agreement will be
interpreted in such manner as to be effective. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during the term of this
Agreement, such provision will be fully severable and this Agreement will be construed and enforced
as if such illegal, invalid, or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement will remain in full force and effect.
Furthermore, in lieu of each such illegal, invalid, or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,
or unenforceable provision as may be possible and be legal, valid, and enforceable; provided,
however, that, if any such change will materially diminish the practical realization of the
benefits intended to be conferred to any Party to this Agreement, such Party may terminate this
Agreement upon written notice to each other Party within 30 days after learning such change has
been effected.



     8.7 Consents; Waivers. Any consent or approval required as a condition to an action under
this Agreement will be effective only (a) if in writing and signed by the Party whose consent is
sought, (b) with respect to the specific matter made the subject to such consent or approval (and
no other matter), and (c) for the specific instance(s) expressly set forth in such consent or
approval (and no earlier or subsequent instances). Any Party may waive any condition, covenant,
term, or provision of this Agreement, but any such waiver will be effective only (a) if in writing
and signed by the Party sought to be bound by such waiver, (b) with respect to the specific
condition, covenant, term, or provision expressly made the subject to such waiver (and no other
condition, covenant, term, or provision), and (c) for the specific instance(s) expressly set forth
in such waiver (and no earlier or subsequent instances). Without limiting the foregoing sentence,
none of the following will constitute a waiver of the rights of a Party to this Agreement to demand
exact compliance with the conditions, covenants, terms, and provisions of
this Agreement: (a) a failure of such Party to exercise any power reserved to it in this
Agreement; (b) a failure of such Party to insist upon compliance by any other Party to this
Agreement with any condition, covenant, term, or provision in this Agreement; (c) a delay,
forbearance, or




 




			
	[***]	 	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.





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omission of such Party to exercise any power; or (d) any custom or practice of the
Parties at variance with the terms of this Agreement. The consent or approval of any Party to this
Agreement with respect to the act of any other Party to this Agreement will not be deemed to waive
or render unnecessary consent to or approval of any subsequent similar act. Subsequent acceptance
by a Party to this Agreement of any performance due to it under this Agreement will not be deemed
to be a waiver by such first Party of any preceding breach by any other Party of any terms,
provisions, covenants, or conditions of this Agreement. No act or conduct of or by MAKO under this
Agreement, including any payment of a royalty, shall be evidence, or deemed an admission or
suggestion, that any product manufactured, licensed, or distributed by MAKO infringes the Licensed
IP Rights or any other intellectual property right.




     8.8 Force Majeure. Neither Party will be in default or otherwise liable for any delay in or
failure of its performance under this Agreement if such delay or failure arises by any reason
beyond its reasonable control, including any act of God, any acts of the common enemy, the
elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or
communications, or any act or failure to act by the other Party or such other Party’s employees,
agents, or independent contractors or representatives; provided, however, that lack of funds will
not be deemed to be a reason beyond a Party’s reasonable control. The Parties will promptly inform
and consult with each other as to any of the above causes that in their judgment may or could be
the cause of a delay in the performance of this Agreement.



     8.9 Legal Costs. Each of the Parties will be responsible for its own expenses, including
legal and accounting fees of advisors, incurred in connection with the negotiation and preparation
of this Agreement. If any action is brought to enforce or interpret the terms of this Agreement
(including through arbitration), the prevailing Party will be entitled to reasonable legal fees,
costs, and disbursements in addition to any other relief to which such Party may be entitled.



     8.10 Dispute Resolution.




     (a) STELKAST and MAKO will attempt to settle any claim or controversy arising out of
this Agreement through consultation and negotiation in good faith and in a spirit of mutual
cooperation.




     (b) In the event that, after reasonable consultation, but within 30 days, the Parties
are unable to reach agreement, any claim or controversy shall be settled by arbitration
administered by the American Arbitration Association under its then current Commercial
Arbitration Rules, before a single arbitrator and judgment on any award rendered by or
finding of the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award actual money damages (with interest on unpaid
amounts from the date due), temporary injunctive relief, and reasonable attorney’s fees and
expenses, but the arbitrator shall not have the authority to award exemplary or punitive
damages, and the Parties expressly waive any claimed right to such damages. The costs of
arbitration shall be borne by the Parties in accordance
with the award of the arbitrator. If a Party fails to proceed with arbitration,
unsuccessfully challenges the arbitration award, or fails to comply with the arbitration
award, the other Party is entitled to costs, including reasonable attorney’s fees, for
having




 




			
	[***]	 	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.





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to compel arbitration or defend or enforce the award. Except as otherwise required
by law, the Parties agree to maintain and agree to cause the arbitrator to maintain as
confidential all information, documents and other data of any kind or nature whatsoever
obtained during the arbitration process, including the fact that such arbitration is being
undertaken and the final award of the arbitrator.




     8.11 Integration. This Agreement sets forth the entire agreement and understanding between
the Parties as to the subject matter hereof and merges all prior discussions between them;
provided, however, that for the avoidance of doubt, this Agreement shall not affect the Parties’
obligations under the License Agreement. Neither of the Parties shall be bound by any warranties,
understandings or representations with respect to such subject matter other than as expressly
provided herein or in a writing signed with or subsequent to execution hereof by an authorized
representative of the Party to be bound thereby.



     8.12 No Partnership. Neither this Agreement, nor any terms and conditions contained herein,
will be deemed or construed to create a partnership, joint venture, other form of business
enterprise or association or cooperative arrangement, agency relationship, or franchise
relationship between the Parties or otherwise to create any liability for either Party whatsoever
with respect to the indebtedness, liabilities, and obligations of the other Party.



     8.13 Counterparts. This Agreement may be executed in any number of counterparts and will be
effective when each Party to this Agreement has executed at least one counterpart, with the same
effect as if all signing Parties had signed the same document. All counterparts will be construed
together and evidence only one agreement, which, notwithstanding the actual date of execution of
any counterpart, will be deemed to be dated the day and year first written above. In making proof
of this Agreement, it will not be necessary to account for a counterpart executed by any Party
other than the Party against whom enforcement is sought or to account for more than one counterpart
executed by the Party against whom enforcement is sought.



     8.14 Facsimile Signatures. The manual signature of any Party to this Agreement that is
transmitted to any other Party or counsel to any other Party by facsimile will be deemed for all
purposes to be an original signature.



     8.15 BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS
AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION
TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS
AGREEMENT.



******




[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.





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     IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed in duplicate
originals by its duly authorized representatives on the respective dates entered below.



	 	 	 	 	 	 	 
	 	 	TRIGON INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Peter N. Stephans	 	 
	 

	 	Name:
	 	Peter N. Stephans	 	 
	 

	 	Title:
	 	CHMN & CEO	 	 
	 

	 	Date:
	 	9/13/05	 	 
	 
	 	 	 	 	 	 
	 	 	MAKO SURGICAL CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Maurice R. Ferré	 	 
	 

	 	Name:
	 	Maurice R. Ferré	 	 
	 

	 	Title:	 	Pres & CEO	 	 
	 

	 	Date:
	 	9/13/05	 	 







 




			
	[***]	 	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