EXHIBIT 10.1
SPACE EXPLORATION TECHNOLOGIES CORPORATION
FALCON LAUNCH SERVICES AGREEMENT
This Launch Services Agreement ("Agreement") is entered into as of November 15,
2005 ("Effective Date") by and between Space Exploration Technologies
Corporation, a Delaware corporation with headquarters at 0000 Xxxx Xxxxx Xxxxxx,
Xx Xxxxxxx, XX 00000 ("SpaceX") and SpaceDev, Inc., with headquarters at 00000
Xxxxx Xxxxx, Xxxxx Xxxxxxxxxx, 00000 ("Customer"). SpaceX and Customer may
hereinafter be referred to individually as "Party" and collectively as
"Parties."
WHEREAS, Customer desires to purchase launch services for its spacecraft and its
customers' spacecraft with the parameters set forth in Xxxxxxxx 0, Xxxxxxxxx of
Work ("Payload") into Earth orbit; and
WHEREAS, SpaceX provides launch services using the Falcon 1 Launch Vehicle
("Falcon");
NOW THEREFORE, the Parties hereby agree as follows:
1. Services to be Provided. SpaceX shall furnish launch services on the
Falcon in accordance with Appendix 1, Statement of Work, ("Basic Launch
Services"), subject to the terms and conditions of this Agreement. Additional
services may be provided by SpaceX on a time and material basis, subject to
negotiations, mutual agreement of the Parties, and a separate statement of work
("Additional Services").
2. Contract Price.
The Contract Price is the sum of:
- [***. . .***]
- [***. . .***]
- [***. . .***]
- Purchase with pricing set forth in this section 2 is guaranteed to Customer
for up to two additional missions (at the option of Customer); however, a
[***. . .***] annual increase in the overall Contract Price will be added to
adjust for inflation, starting on Jan 1, 2008.
3. Date of Launch. The expected launch date for contractual and planning
purposes is May 15, 2008 ("Estimated Launch Date"). By mutual agreement of the
Parties, the Estimated Launch Date may be adjusted up to 18 months in advance of
the Estimated Launch date. It is mutually understood that the date when the
launch actually occurs ("Actual Launch Date") is dependent upon weather, range
availability, government approvals, Falcon readiness, Payload readiness and
similar factors.
4. Payment Terms
4.1. Payment Schedule. Customer shall pay to SpaceX the Contract Price in
five installments in accordance with the following schedule
- [***. . .***]
- [***. . .***]
- [***. . .***]
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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- [***. . .***]
- [***. . .***]
4.2. Invoices. SpaceX shall submit invoices to Customer at least thirty (30)
days prior to the payment due date for each scheduled payment event set forth in
Section 4.1, provided, however, that the executed Agreement shall serve as the
invoice for the first scheduled payment. Any payments delayed beyond the payment
due date shall be subject to interest at a rate of [***. . .***] per day of
delay.
4.3. Invoice Address. SpaceX shall invoice Customer at the following
address:
SpaceDev, Incorporated
Accounts Payable
00000 Xxxxx Xxxxx
Xxxxx, XX 00000
5. Taxes. To the best knowledge of SpaceX on the Effective Date of this
Contract, no taxes are due for the activities and transactions contemplated by
this Agreement. However, should taxes be levied, Customer alone shall bear any
and all national, federal, state or local sales, use, value added or other
taxes, customs duties, or similar tariffs and fees that may levied or collected
upon the transactions contemplated by this Agreement ("Taxes"). Such Taxes are
not included in the Contract Price as defined in Section 2, Contract Price, and
shall be borne by Customer in addition to the Contract Price. Where SpaceX is
required by law to collect Taxes, SpaceX shall notify Customer of such a
requirement, provide evidence of requirement and Customer shall pay SpaceX the
appropriate amount in addition to the Contract Price.
6. Best Price Assurance. SpaceX intends that the Customer never pay more
than the standard price for Basic Launch Services at the time of the Estimated
Launch Date. If SpaceX reduces the single flight, standard price of Basic
Launch Services prior to the Estimated Launch Date, the Customer will be
entitled to reduce their next payment to SpaceX accordingly by the difference.
If all payments for launch have been made or the reduction in price exceeds
payments due from the Customer, SpaceX will wire the appropriate rebate to the
Customer no later than thirty (30) days in advance of the Actual Launch Date.
7. Reflight Launch Option
7.1. [***. . .***]
7.2. Qualifying Condition. The Parties agree that the Reflight Launch
Option is exercisable only in the event of a Launch Failure due to the Falcon
launch vehicle. Such a Launch Failure must constitute either delivery of the
Payload to an orbit where it cannot reasonably be used for the intended mission,
destruction of the Payload as a result of Falcon breakup, or substantial damage
to the Payload due to launch loads that materially exceed those defined in the
Interface Control Document.
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FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
7.3. Sole Remedy. The reflight launch shall be the sole and exclusive
remedy available to customer for any launch failure or payload failure
whatsoever, including any inability to use the payload for all or part of its
intended mission, howsoever caused, and regardless of the theory of liability
(with the exception of gross negligence), whether based in contract or tort,
including negligence, product liability, and strict liability, or any other
theory of liability, provided, however, that this remedy shall be available only
when customer has purchased a reflight launch option and customer has made all
of the payments and reasonably complied with all of the other conditions of this
agreement
8. Third Party Liability
8.1. Insurance. SpaceX shall procure and maintain third party launch
liability insurance as prescribed by the Federal Aviation Administration's
Associate Administrator for Commercial Space Transportation pursuant to the
Commercial Space Launch Act, as amended, 49 U.S.C. Sec.Sec. 70101-70121. SpaceX
shall name as additional insureds Customer and its Payload customer, contractors
and subcontractors involved in launch services, the U.S. government and its
contractors and subcontractors involved in launch services, and SpaceX's
contractors and subcontractors involved in launch services. Such insurance
will comply with the terms of the Federal launch license.
9. Cross Waivers of Liability
9.1 Third party Liability. SpaceX shall be exclusively liable to third
parties for any injury, loss or damage to any third party caused solely by
SpaceX or its equipment, including the Falcon or parts thereof. Customer shall
be exclusively liable to third parties for any injury, loss or damage to any
third party caused solely by Customer or its equipment, including the Payload or
parts thereof.
9.2. Waivers. SpaceX and Customer agree to a reciprocal waiver of liability
pursuant to which each Party agrees to assume the risk and agrees not to xxx or
otherwise bring a claim against the other Party or that Party's Related Third
Parties or against the U.S. government and its contractors and subcontractors,
for any property loss or damage, including loss of or damage to the Payload, or
other financial loss it sustains, or for any injury, death, property loss or
damage or other financial loss sustained by its employees, officers, directors
or agents, arising in any manner out of or in connection with activities
relating to the performance of this Agreement.
9.3. Extension of Waivers. SpaceX and Customer agree to extend the waiver
of liability to their respective contractors and subcontractors requiring them
to waive the right to xxx or otherwise bring a claim against the other Party or
that Party's Related Third Parties or the U.S. government and its contractors
and subcontractors, for any property loss or damage, including loss of or damage
to the Payload or Falcon, or other financial loss they may sustain, or for any
injury, death, property loss or damage or other financial loss sustained by
their employees, officers, directors or agents, arising in any manner out of or
in connection with activities relating to the performance of this Agreement.
9.4. Indemnification. SpaceX and Customer agree that each Party shall
indemnify and hold harmless the other Party from and against liability or
expense, including attorneys' fees, resulting from any suit or claim by the
indemnifying Party's Related Third Parties for any property loss or damage,
including loss of or damage to the Payload, or other financial loss it sustains
or for any injury, death, property loss or damage or other financial loss
sustained by its employees, officers, directors or agents, arising in any manner
out of or in connection with activities relating to the performance of this
Agreement.
9.5. Applicability. When applicable to the Parties' contractors and
subcontractors, the waivers shall apply to contractors and subcontractors at
every tier that are involved in activities relating to the performance of this
Agreement. The waivers shall apply regardless of the theory of liability,
whether based in contract or tort, including negligence, product liability, and
strict liability, or any other theory of liability. Each Party agrees to obtain
insurance as it deems necessary to cover death, injury, loss or damage for which
it has waived the right to xxx or bring a claim against the other Party, and
each Party agrees to obtain a waiver of subrogation rights from any insurer
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FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
providing such insurance coverage. Nothing in this Section 9 shall preclude
SpaceX from suing or otherwise bringing a claim against its own Related Third
Parties, nor shall it preclude Customer from suing or otherwise bringing a claim
against its own Related Third Parties. The Parties agree to further memorialize
the rights and obligations described in this Section 9 in any agreement that may
advised or required by the U.S. government.
9.6. Definition. "Related Third Parties" shall mean: 1) the Parties'
respective contractors and subcontractors at every tier that are involved in
activities relating to the performance of this Agreement; 2) the Parties'
respective directors, officers, employees, and agents; or 3) any entity or
person who has any valid right, title or interest in the Payload or the Falcon.
10. Delays.
10.1 Excusable delay. Neither Party shall be liable for any delay or
failure to perform under this Agreement in the event such delay or failure to
perform is due to a cause beyond the control and not due to the fault of the
Party invoking this Section 10.1. Such excusable delays shall include, but not
be limited to, Acts of God, acts of government in its sovereign or contractual
capacity, acts or threat of terrorism, earthquake, riot, revolution, hijacking,
fire, strike, embargo, sabotage, or interruption of essential services or
supplies. The period of performance under this Agreement shall be extended by
the duration of the excusable delay. Notification of excusable delay will be
provided in writing and the extension period will be agreed to by both parties
in writing.
10.2 Payload delays. If the Payload causes launch delays beyond the
Estimated Launch Date, the Customer will pay penalties to SpaceX on the
following schedule until the Payload is ready and delivered to SpaceX's launch
site:
o [***. . .***]
o [***. . .***]
o [***. . .***]
10.3 Launch vehicle delays. If the launch vehicle causes delays beyond the
Estimated Launch Date, SpaceX will reimburse the customer on the following
schedule until the launch vehicle is ready for shipment to the launch site:
o [***. . .***]
o [***. . .***]
o [***. . .***]
10.4 [***. . .***]
11. Intellectual Property Rights. SpaceX shall exclusively own and retain
all right, title and interest in and to all Inventions created, conceived or
developed by SpaceX under this Agreement, including all intellectual property
rights therein and thereto. Customer shall exclusively own and retain all
right, title and interest in and to all Inventions created, conceived or
developed by Customer under this Agreement, including all intellectual property
rights therein and thereto. The Parties do not intend to jointly develop any
Inventions under this Agreement. As used in this Section 11, "Inventions" means
all ideas, designs, concepts, techniques, inventions, discoveries, works of
authorship, modifications, improvements, or derivative works, regardless of
patentability.
12. Confidentiality
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OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
12.1. Confidentiality of this Agreement. Neither Party shall disclose any
of the terms of this Agreement to any third party without the prior written
consent of the other Party, except as compelled by judicial or other
governmental action and with reasonable notice provided in writing to the
affected Party at least five business days in advance of the disclosure.
12.2. Announcements. No public announcement, release, or other disclosure
of information relating to this Agreement, including the existence of this
Agreement, shall be made except by prior written agreement of the Parties on the
specific content of such disclosure; however, such agreement may not be
unreasonably be withheld.
12.3. Confidential Information. SpaceX and Customer each agree to retain in
confidence all non-public information, trade secrets, and know-how disclosed
pursuant to this Agreement which is either designated as proprietary and/or
confidential, or which by the nature of the circumstances surrounding
disclosure, should reasonably be understood to be confidential ("Confidential
Information"). Each Party agrees to: 1) preserve and protect the
confidentiality of the other Party's Confidential Information; 2) refrain from
using the other Party's Confidential Information except as contemplated in this
Agreement; 3) disclose the Confidential Information only to its directors,
officers, employees or agents as is reasonably required in connection with the
exercise of that Party's rights and obligations under this Agreement and subject
to a binding non-disclosure agreement that is at least as protective as this
Section 12; and 4) not disclose Confidential Information to any third party,
provided, however, that either Party may disclose Confidential Information of
the other Party that is: a) already in the public domain through no fault of
the disclosing Party; b) discovered or created by the receiving Party without
reference to the Confidential Information of the disclosing Party; c) otherwise
made known to the receiving Party through no wrongful conduct of the receiving
Party or the entity providing the information to the receiving party; or d)
required to be disclosed by judicial or other governmental action (subject to
reasonable notice provided in writing to the affected Party at least five
business days in advance of the disclosure). The confidentiality obligations of
this Section 12 shall survive the expiration or termination of this Agreement
for a period of five (5) years.
12.4 Notwithstanding any provision of this Section 12 to the contrary,
either Party may disclose the Confidential Information, including the terms of
this Agreement: 1) in confidence, to legal counsel; 2) in confidence, to
accountants, banks, and financing sources and their advisors solely for the
purposes of securing financing; 3) in confidence, to its insurance broker and
prospective insurers solely for the purposes of securing insurance for the
payload and launch services and in settling any claim for loss; 4) in connection
with the enforcement of this Agreement or rights under this Agreement; or 5) in
confidence, in connection with an actual or proposed merger, acquisition, or
similar transaction solely for use in the due diligence investigation in
connection with such transaction.
13. Limitation of Liability
13.1. No Consequential Damages. In no event shall either Party be liable
for any indirect, special, incidental, exemplary, punitive or consequential
damages of any kind, for the cost of procurement of substitute products or
services, or for lost revenues or profits, arising out of or in connection with
this Agreement, howsoever caused and regardless of the theory of liability,
whether based in contract or tort, including negligence, product liability, and
strict liability, or any other theory of liability.
13.2. Total Liability. SpaceX's total and cumulative liability arising out
of or in connection with this Agreement howsoever caused and regardless of the
theory of liability, whether based in contract or tort, including negligence,
product liability, and strict liability, or any other theory of liability, shall
in no event exceed the amounts actually paid by Customer and received by SpaceX
for Basic Launch Services pursuant to this Agreement.
13.3. Application. The limitations set forth in this Section 13 shall apply
even if SpaceX has been advised of the possibility of such losses or damages,
and notwithstanding any failure of essential purpose of any limited remedy set
forth in this Agreement. The Parties acknowledge that the amounts payable
hereunder are based in part on the limitations of this Section 13 and that such
limitations are a bargained-for and essential part of this Agreement.
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FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
14. Warranties. Except for the Reflight Launch Option (if purchased by
Customer), SpaceX has not made, nor does it make, any representation or
warranty, whether written or oral, whether express or implied, including, but
not limited to, any warranty of design, operation, quality, workmanship,
suitability, result, merchantability, or fitness for a particular purpose with
respect to the Falcon, launch services, or associated equipment and services.
Any implied warranties, including warranties of merchantability and fitness for
a particular purpose, are hereby expressly disclaimed.
15. Termination
15.1. Mutual Agreement. This contract may be terminated by mutual consent
of the Parties in writing signed by the duly authorized representatives of both
Parties.
15.2. Customer's Right to Terminate. If SpaceX is unable to provide Basic
Launch Services within twelve (12) months following the Estimated Launch Date
(with the exception of additional time resulting from an excusable delay as
defined by section 10.1), Customer will, subject to a thirty (30) day written
notice to SpaceX, have the option of terminating this Agreement. Separately, in
the event of failure by SpaceX to comply with any other material provision of
this Agreement after having been given a ninety (90) day period to cure such
non-performance, Customer will have the option of terminating this Agreement.
Upon such termination, Customer shall be entitled to receive a refund within 30
days of all payments actually made by Customer and received by SpaceX for Basic
Launch Services pursuant to this Agreement (minus any penalties paid to SpaceX
pursuant to Section 10.2 and any payments attributable to Federal range usage,
payload integration fees, or third-party liability insurance fees, if
applicable) up to the date of Termination and SpaceX shall have no further
obligations or liability to Customer. The right to terminate and receive a
refund is Customer's sole and exclusive remedy for termination in the event of
delay in the launch of the Payload.
15.3. SpaceX's Right to Terminate. SpaceX shall have the option of
terminating this Agreement and retaining all payments without further
obligations or liability to Customer for the following reasons: in the event of
a failure by Customer to deliver the Payload for integration within thirty six
(36) months following the Estimated Launch Date (with the exception of
additional time resulting from an excusable delay as defined by section 10.1);
or in the event of failure by Customer to comply with any other material
provision of this Agreement after having been given a ninety (90) day period to
cure such non-performance.
15.4 [***. . .***]
16. Licenses. Each Party shall be responsible for obtaining any licenses,
authorizations, clearances, approvals or permits ("Licenses") necessary to carry
out its obligations under this Agreement. Each Party agrees to provide
reasonable assistance to the other Party as necessary to obtain such Licenses.
SpaceX shall be responsible for obtaining any Licenses required to carry out
launch services in the United States, and Customer agrees to provide information
and to execute any documentation needed to obtain such Licenses pursuant to the
United States International Traffic in Arms Regulations, 22 C.F.R. Parts
120-130, and Regulations for the Importation of Arms, Ammunition and Implements
of War, 27 C.F.R. Part 447.
17. Compliance with Government Requirements. SpaceX and Customer agree to
comply with their respective national, federal, state and local laws and
regulations, and any government licenses, and Customer, in addition, agrees to
comply with U.S. export and import laws, regulations, rules, licenses and
agreements applicable to the launch of Customer's Payload. Customer shall be
responsible for arranging for registration of the Payload pursuant to the
Convention on Registration of Space Objects Launched Into Outer Space, done
January 14, 1975, T.I.A.S. 8480.
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FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
18. Notices
18.1. Transmittal. All notifications and other data transmittals under this
Agreement shall be in writing and shall be hand-delivered or sent via express
mail, first class mail, or electronic mail to the addresses specified below with
confirmation of receipt.
18.2. Effective Date. The date upon which any such communication is
hand-delivered or, if such communication is sent by mail or by electronic
transmission, the date upon which the addressee receives it, shall be the
effective date of such communication.
18.3 Change of Address. Each Party shall promptly notify the other in the
event of any change in their respective addresses.
For correspondence sent to SpaceX:
Space Exploration Technologies Corp.
0000 Xxxx Xxxxx Xxxxxx
Xx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
PH. 000-000-0000 X 000
Fax: 000-000-0000
Email: xxxxxx@xxxxxx.xxx
For correspondence sent to Customer:
SpaceDev, Inc.
00000 Xxxxx Xxxxx
Xxxx: Xxxx Xxxxx
PH: 858-375-2000
Fax: 000-000-0000
Email: Xxxx.Xxxxx@xxxxxxxx.xxx
19. Dispute Resolution. All disputes and controversies of every kind and
nature arising out of this Agreement including the existence, construction,
validity, interpretation, performance, nonperformance, enforcement or breach of
any provision of this Agreement, shall be settled by commercial arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. The findings of such Arbitrator shall be final and binding upon
all parties. Any award of arbitration shall include attorney fees and costs of
arbitration, including but not limited to expert witness fees, payable to the
prevailing party in the arbitration, as determined by the Arbitrator.
20. Appendices
20.1. Incorporation by Reference. The following appendices are incorporated
into this Agreement by reference and shall be an integral part of this
Agreement:
[***. . .***]
[***. . .***]
20.2. Precedence. In the event of conflict between this Agreement and any
of the appendices, this Agreement shall govern. In the event of a conflict
between Appendices, the sequence of precedence shall be as listed above.
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OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
21. Severability. If any portion of this Agreement is held invalid, the
Parties agree that such invalidity shall not affect the validity of the
remaining portions of this Agreement, unless applying such remaining portions
would frustrate the purpose of this Agreement.
22. Waiver. The failure of either Party to exercise any right granted in
this Agreement or to require any performance of any term of this Agreement or
the waiver by either Party of any breach of this Agreement shall not prevent a
subsequent exercise or enforcement of, or be deemed a waiver of any subsequent
breach of, the same or any other term of this Agreement.
23. No Joint Venture or Agency. Nothing in this Agreement shall constitute
or create a joint venture, partnership, or any other similar arrangement between
the Parties. No Party is authorized to act as agent for the other Party
hereunder except as expressly stated in this Agreement.
24. Assignment. Customer may not assign, delegate or otherwise transfer
this Agreement or any rights or obligations under this Agreement, whether
voluntary, by operation of law or otherwise, without the prior written consent
of SpaceX, unless to a successor. With the written consent of SpaceX, Customer
may use the value of the Agreement in excess of cost as collateral to secure any
indebtedness of Customer. SpaceX may assign, delegate or otherwise transfer
this Agreement, or any rights or obligations under this Agreement, to any
successor by way of merger, acquisition or sale of all or substantially all of
the assets relating to the performance of this Agreement. SpaceX or any
successor may assign all or part of the right to payments under this Agreement.
Any assignment, delegation, or transfer of this Agreement made in contravention
of the terms hereof shall be null and void. Subject to the foregoing, this
Agreement shall be binding on and inure to the benefit of the Parties'
respective successors and permitted assigns.
25. Governing Law. This Agreement and performance by the Parties hereunder
shall be construed in accordance with the laws of the State of California,
U.S.A., without regard to provisions on the conflicts of laws.
26. Entire Agreement. This Agreement, and all Exhibits and Appendices
hereto, supersedes all prior communications, transactions, and understandings,
whether oral or written, with respect to the subject matter hereof and
constitutes the sole and entire agreement between the Parties pertaining to the
subject matter hereof.
27. Modification. No modification, addition or deletion, or waiver of any
of the terms and conditions of this Agreement shall be binding on either Party
unless made in a non-preprinted agreement clearly understood by both Parties to
be a modification or waiver, and signed by a duly authorized representative of
each Party.
28. Insurance Support. Parties agree to cooperate with reasonable efforts
to obtain and maintain launch insurance and to support filing and settling any
claims. This includes responding to insurer questions, delivering requested
information regarding the Falcon and the launch range facilities and conducting
insurance briefings and facilitating site inspections as required to obtain and
maintain such insurance.
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OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of
the Effective Date:
SPACE EXPLORATION TECHNOLOGIES CORP. CUSTOMER
By: /s/ Xxxx Xxxx By: /s/ Xxxxxxx X Xxxxxxx
-------------------- -------------------------
Name: Xxxx Xxxx Name: Xxxxxxx X Xxxxxxx
Title: CEO Title: President
Date: 11/15/2005 Date: 11/15/2005
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FILED HEREWITH OMITS THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED [***. . .***]. A COMPLETE VERSION OF THIS EXHIBIT HAS
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
