EXHIBIT 10.12
SUPPLY AND SERVICES AGREEMENT
This Supply and Services Agreement (the "Agreement") is dated as of this
22nd day of February, 1997 (the "Effective Date") by and between Heartport,
Inc., a Delaware corporation located at 000 Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxx,
Xxxxxxxxxx 00000 ("Heartport"), and Vista Medical Technologies, Inc., a Delaware
corporation located at 0000 Xxxxxxx Xxxxxxx, Xxxxx X, Xxxxxxxx, Xxxxxxxxxx
00000, through its Vista CardioThoracic Surgery division, (individually and
collectively, "Vista").
RECITALS
WHEREAS, as partial consideration for this Agreement, Heartport has been
issued a Common Stock Purchase Warrant, dated as of the Effective Date (the
"Warrant"), pursuant to which Heartport may purchase up to 100,000 shares of the
Common Stock of Vista;
WHEREAS, Vista desires to supply to Heartport, and Heartport desires to
purchase from Vista, four (4) Vista Systems (as defined below) as set forth in
this Agreement;
WHEREAS, Heartport and Vista desire to set forth the terms of the services
Vista will provide to Heartport with respect to such Vista Systems in this
Agreement; and
WHEREAS, Vista desires to sell such Vista Systems to surgeons that have
been trained at HRTC (as defined below) and/or the hospitals with which they are
affiliated and Heartport and Vista desire to set forth their agreement with
respect to such sales in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1 "AFFILIATE" means any entity directly or indirectly controlling,
controlled by, or under common control with either party hereto and shall
include, without limitation, any entity more than fifty percent (50%) of whose
voting stock or participating profit interest is owned or controlled, directly
or indirectly, by either party and any entity which owns or controls, directly
or indirectly, more than fifty percent (50%) of the voting stock of either
party.
1.2 "EFFECTIVE DATE" means the date of this Agreement set forth in the
preamble.
1.3 "HRTC" means the Heartport Research and Training Center in Salt Lake
City, Utah or other comparable research and training center used by Heartport in
North America where Vista Systems are installed.
1.4 "NORTH AMERICA" means the United States, its territories, and Canada.
1.5 "PORT-ACCESS-TM- HOSPITAL" means a hospital, clinic or other similar
site in North America where cardiothoracic surgery is performed, where at least
one cardiothoracic surgeon has been trained at HRTC to perform one or more
Port-Access Procedures (and, after the first two (2) Vista Systems have been
installed at HRTC pursuant to this Agreement, such surgeon shall have been
exposed to the Vista System in the course of the training program during the
Services Term), and such site is a Heartport customer at the time it places an
order with Vista for one or more Vista Systems. A Port-Access Hospital is a
Heartport customer if a surgeon affiliated with it is performing Port-Access
Procedures and/or the site is under contract with Heartport to purchase Port-
Access Procedures or devices or instruments for performing such procedures.
1.6 "PORT-ACCESS-TM- PROCEDURES" means minimally invasive procedures for
cardiothoracic surgery using technology developed, licensed or otherwise owned
by Heartport.
1.7 "PROPRIETARY INFORMATION" means information developed, known by or
conveyed to a party, including, without limitation, trade secrets, copyrights,
ideas, techniques, know-how, inventions (whether patentable or not), and/or any
other information of any type relating to designs, configurations, toolings,
clinical procedures or treatments, documentation, recorded data, schematics,
source code, object code, master works, master databases, algorithms, flow
charts, formulae, circuits, works of authorship, mechanisms, research,
manufacture, improvements, assembly, installation, intellectual property
including patents and patent applications, business plans, past or future
financing, marketing, forecasts, pricing, customers, the salaries, duties,
qualifications, performance levels, and terms of compensation of employees,
and/or cost or other financial data concerning any of the foregoing or the
party, its Affiliates and their operations generally.
1.8 "SERVICES TERM" means the period from the Effective Date through
December 31, 1999; provided, however, that the Services Term shall terminate in
the event that this Agreement is terminated in accordance with Article 8 hereof.
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1.9 "VISTA CARDIOVIEW-TM- DISPLAY" shall mean Vista's CardioView-TM- Head
Mounted Display or any iteration or improvement thereof or other similar head-
mounted display developed, licensed or otherwise owned by Vista or its Affiliate
and any variation, improvement or upgrade thereto or revision or replacement
thereof.
1.10 "VISTA SYSTEM" shall mean Vista's Series 8000 Visualization and
Information System (including, without limitation, one Vista Cardio-TM-View
Display, one 3-D camera, all related software and hardware and Vista's standard
warranty for such Vista System), or other similar visualization and information
system in the field of cardiac surgery related to the Vista Series 8000
Visualization and Information System, or any iteration or improvement thereof
developed, licensed or otherwise owned by Vista or its Affiliate and any
variation, improvement or upgrade thereto or revision or replacement thereof.
2. SUPPLY TO HEARTPORT.
2.1 SUPPLY OF VISTA SYSTEMS. Subject to the terms and conditions of this
Agreement, Vista will supply to Heartport four (4) Vista Systems in accordance
with the following delivery and payment schedules. Vista will ship two (2)
Vista Systems to * * * * * * , for delivery in * * * (or Vista shall use
commercially reasonable efforts to deliver as soon as possible thereafter) and
Heartport will pay Vista * * * within * * * days of the delivery and
installation of such Vista Systems. Vista will ship two (2) Vista Systems to
HRTC, * * * , for delivery in * * * (or Vista shall use
commercially reasonable efforts to deliver as soon as possible thereafter) and
Heartport will pay Vista * * * within * * * days of the delivery and
installation of such Vista Systems. Vista will notify Heartport in writing of
the exact delivery dates at least thirty (30) days in advance of such shipments.
In further consideration of this Section 2.1 and Vista's other obligations under
this Agreement, Heartport shall make the following additional payments to Vista
in accordance with the schedule set forth below:
* * *
All costs, taxes, insurance premiums, and other expenses relating to Vista
Systems transportation and delivery shall be at * * * . Prior to
exercising the Warrant, Heartport or its successor agree to pay to Vista all
unpaid amounts payable pursuant to this Section 2.1.
2.2 LATE DELIVERY. If Vista becomes aware that any Vista System will not
be delivered within the range of acceptable delivery dates, Vista shall
immediately notify
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Heartport in writing no more than five (5) days after becoming aware of the
possibility of late delivery and prior to delivery of such Vista System.
Heartport may, at its discretion, accept late delivery of any such Vista System.
Heartport's rejection of such late Vista System shall not give rise to the
termination of this Agreement and the parties shall negotiate in good faith with
regard to the payments due to Vista hereunder with respect to such Vista System.
2.3 TITLE AND RISK OF LOSS. * * *
* * *
* * *
2.4 RESALE OF VISTA SYSTEMS BY HEARTPORT. Except in connection with the
sale of all or substantially all of the assets of HRTC or a change in control of
Heartport and/or HRTC, Heartport agrees that it will not sell or transfer the
Vista Systems purchased pursuant to this Agreement during the Services Term.
After the Services Term, prior to selling a Vista System to a third party,
Heartport shall first offer such Vista System to Vista for repurchase by Vista
and the parties agree to negotiate in good faith for * * * days to reach a
fair price. If the parties have not reached agreement during such * * *
day period, Heartport may sell such Vista System to a third party on material
terms no more favorable than those offered to or by Vista.
3. SERVICES TO HEARTPORT.
3.1 INSTALLATION, SUPPORT AND SERVICE. Notwithstanding anything in this
Agreement to the contrary, during the Services Term, Vista will install all
Vista Systems purchased by Heartport hereunder at HRTC in accordance with the
terms of this Agreement. In addition, during the Services Term, Vista shall
provide on-site in-service to operate and repair the Vista Systems at
Heartport's request. During the Services Term, Heartport will notify Vista of
any defective Vista System as soon as reasonably practical after Heartport
becomes aware of such defective Vista System. If Vista cannot timely repair the
defective Vista System, Vista will use commercially reasonable efforts to
replace the defective Vista System within * * * days after receipt of
notice of such defective from Heartport or as otherwise agreed to by Heartport.
During the Services Term, Vista will promptly provide and install all available
upgrades to the Vista Systems at HRTC so that the Vista Systems at HRTC are the
most current commercially available state-of-the-art. The parties will
cooperate to ensure that representatives of Vista will receive reasonably
adequate access to HRTC to perform the services and support provided hereunder.
Vista agrees to arrange the schedule of in-service provided by Vista at HRTC in
advance with Heartport's Director of Clinical Affairs or his designee and to
visit HRTC in accordance with the arranged schedule. All such representatives
will execute and abide by Heartport's standard Confidential Disclosure Statement
at HRTC.
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3.2 TRAINING MATERIALS. Members of Vista's and Heartport's management
will work together to prepare all training materials with respect to Vista
Systems that are provided to Heartport trainees at HRTC. Such training material
will be subject to the written approval of at least one (1) member of the senior
management of each of Heartport and Vista prior to its distribution to Heartport
trainees.
4. VISTA SYSTEM COMPATIBILITY. During the Services Term and for a period of
* * * years thereafter, Vista and Heartport agree to mutually evaluate new
software or digital signal processing technology or similar technology useful in
the performance of Port-Access Procedures. If the parties mutually determine in
good faith that it would be commercially and technically appropriate, they will
work together using commercially reasonable efforts with the goal of ensuring
that the Vista System, including, without limitation, the Vista CardioView-TM-
Display, is compatible with such software or digital signal processing or
similar technology. Notwithstanding the foregoing, Vista agrees to work with
Heartport using commercially reasonable efforts to satisfy Heartport's
reasonable requests for inclusion of specified features in the Vista CardioView-
TM- Display that relate to Port-Access Procedures.
5. PROMOTIONAL ACTIVITY. During the Services Term, Heartport will promote
that its HRTC training courses utilize Vista Systems and will endorse such Vista
Systems as the preferred three-dimensional video visualization and information
solution for minimally invasive cardiac surgery and Vista will promote that
Heartport's HRTC training course utilize Vista Systems. Such promotional
activity will be subject to the written approval of at least one (1) member of
the senior management of each of Heartport and Vista prior to its distribution.
Heartport will provide Vista with lists of the names and hospital affiliations
of the HRTC trainee surgeons on at least a quarterly basis. Heartport also
agrees to endorse such Vista Systems as a preferred three-dimensional video
visualization and information solution for minimally invasive cardiac surgery
after the Services Term for so long as Vista is obligated to sell Vista Systems
to Port-Access Hospitals pursuant to Article 6 hereof.
6. SUPPLY TO PORT-ACCESS HOSPITALS.
6.1 NON-DISCRIMINATION. During the Services Term and for four (4) years
thereafter (the "Supply Term"), Vista will sell Vista Systems to each Port-
Access Hospital without discrimination and on the best available terms and
conditions it offers to any other similarly situated Vista customer in North
America purchasing similar quantities of Vista Systems (whether on a per unit
payment basis or on a per procedure payment basis). Such terms and conditions
include, without limitation, price, priority of delivery, warranty, service and
rights to receive upgrades. For purposes of this Agreement, "similarly
situated" shall be determined by Vista in good faith based on factors such as
quantity ordered, number of procedures performed, payment, delivery and services
terms, revenues anticipated to be generated at the site, quantities already
installed or
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committed to be installed and geographic considerations. * * *
* * *
* * *
If a Port-Access Hospital places an order for one (1) or more Vista Systems (or
procedures) the aggregate number of which is not eligible for a volume discount,
the best available terms and conditions shall be determined by reference to
similar sales to other Vista customers in North America. Notwithstanding the
foregoing, in the event Vista sells Vista Systems in North America as a kit with
other products, the best available terms and conditions for Vista Systems shall
be determined by the following equation:
Price (the "New Price") for stand-alone Vista System if Vista sells as a kit
with other products = (A/A+B)C
where
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If a product or relevant Vista System is not sold * * *
* * *, the parties shall in good faith mutually agree upon a fair price for
such component of the formula. The determination of price for a * * *
* * * shall take into account the fairest
determination of * * * given the circumstances
* * *
* * * . Nothing in this Article 6 shall prevent Vista
from implementing reasonable price increases for Vista Systems, provided that
such increases apply equally to all similarly situated Vista customers in North
America.
6.2 MEET AND CONFER. The parties agree that Vista's obligations pursuant
to this Article 6 are an important component of the consideration for this
Agreement. In the event of a misunderstanding between the parties with respect
to the terms of this Article 6, each party hereby represents and warrants to the
other party that at least one (1) member of its senior management will meet with
at least one (1) member of the senior management of the other party within no
more than fifteen (15) days after
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receiving written notice of the other party's concern or request for
clarification under this Article 6. The parties agree to discuss the concern or
request for clarification in good faith with the goal of resolving the
misunderstanding to the satisfaction of both parties. In addition, the parties
agree that during the period of discussion covered by this Section 6.2 that each
party will honor reasonable requests for the review of its records related to
the misunderstanding. In the event that the party giving notice of the concern
or requested clarification is not satisfied with the results of negotiation
after thirty (30) days from the date of the first meeting between the parties,
such party shall have the right to pursue other remedies available under the
terms of this Agreement.
6.3 EXTENSION OF SUPPLY TERM. At Heartport's request, Vista will
negotiate in good faith to extend the Services Term and/or the Supply Term on
mutually acceptable terms.
7. CONFIDENTIALITY.
7.1 Each party acknowledges the importance of the other party's
Proprietary Information. Each party agrees (i) to hold the other party's
Proprietary Information in confidence and to take all reasonable precautions to
protect such Proprietary Information (including, without limitation, all
precautions such party employs with respect to its confidential materials),
(ii) not to divulge any such Proprietary Information or any information derived
therefrom to any third person (including Affiliates, except on a "need to know"
basis, (iii) not to make any use whatsoever at any time of such Proprietary
Information except as expressly authorized in this Agreement and (iv) not to
copy, study, analyze, examine or reverse engineer any such Proprietary
Information except as expressly authorized in this Agreement. Any employee or
contractor given access to any such Proprietary Information must have a
legitimate "need to know" and shall be similarly bound.
7.2 Without granting any right or license, each party agrees that
Section 7.1 shall not apply to information a party can document (i) is in or,
through no improper action or inaction by such party or any Affiliate, agent or
employee, enters the public domain (and is readily available without substantial
effort), or (ii) was rightfully disclosed to it by a third party not under
restriction not to disclose such information, or (iii) was independently
developed by it by persons without access to, or use of, any Proprietary
Information of the other party. A party must promptly notify the other party of
any information it believes comes within any circumstance listed in the
immediately preceding sentence and will bear the burden of proving the existence
of any such circumstance by clear and convincing evidence.
7.3 Immediately upon (i) termination of this Agreement or (ii) a party's
earlier written request, a receiving party will turn over to the disclosing
party all of such disclosing party's Proprietary Information and all documents
or media containing any
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such Proprietary Information (and any and all copies or extracts thereof) and
shall have an officer of such party so certify to the disclosing party in
writing. In such instance, each party's chief legal officer may retain one
archival copy of the other party's Proprietary Information in secure files,
provided, however, that if such copies are retained, the officer's certificate
referred to in this Section 7.3 shall so state.
7.4 Each party acknowledges and agrees that due to the unique nature of
the other party's Proprietary Information, there can be no adequate remedy at
law for any breach of its obligations hereunder, that any such breach may allow
the receiving party or third parties to unfairly compete with the disclosing
party resulting in irreparable harm to the disclosing party, and, therefore,
upon any such breach or any threat thereof, the disclosing party shall be
entitled to appropriate equitable relief in addition to whatever remedies it
might have at law and to be indemnified by receiving party from any loss or
harm, including, without limitation, lost profits and attorney's fees, in
connection with the unauthorized use or release of any Proprietary Information
of the disclosing party or breach of this Article 7. A receiving party shall be
obligated to notify the disclosing party in writing immediately upon the
occurrence of any such unauthorized use or release or breach of this Article 7.
7.5 The obligations imposed by Sections 7.1 and 7.2 with respect to the
protection of Proprietary Information shall continue for a period of * * *
following disclosure of such Proprietary Information unless otherwise agreed
to in writing by the parties.
8. TERM AND TERMINATION.
8.1 TERM. Except as otherwise set forth in this Agreement, Vista shall be
obligated to provide the services to Heartport set forth in Article 2 and
Article 3 of this Agreement and Heartport shall be obligated to make the
payments to Vista described in Article 2 of this Agreement during the Services
Term. In addition, Vista shall be obligated to supply Vista Systems to Port-
Access Hospitals during the Supply Term defined in Article 6 hereof and both
parties shall be obligated to perform their respective obligations pursuant to
Articles 4, 5, 6 and 7 during the terms set forth therein. Unless otherwise
expressly set forth herein, this Agreement will terminate at the end of the
Supply Term unless extended by the parties in accordance with the terms of this
Agreement.
8.2 TERMINATION BY EITHER PARTY. If either party is in material breach of
one or more provisions of this Agreement, the Agreement may be terminated by the
non-breaching party if the breach is not cured by the breaching party within
* * * days of written notification of the breach by the non-breaching party.
The breach may be cured after * * * days of such notification by mutual
written agreement of the parties.
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8.3 SURVIVAL. Except as otherwise set forth in this Agreement, upon the
termination or expiration of this Agreement, all rights and obligations of the
parties under this Agreement shall cease, except that the provisions of
Articles 7 and 9 and this Section 8.3 shall survive and any other provisions
which by their terms or nature are intended to survive such termination or
expiration shall survive and continue to be enforceable. Notwithstanding the
foregoing, upon any termination, pending orders received by Vista from Port-
Access Hospitals prior to such termination shall be completed and shipped
pursuant to the terms of this Agreement and any arrangements between the Port-
Access Hospital and Vista.
9. MISCELLANEOUS.
9.1 RELATIONSHIP OF PARTIES. The relationship of the parties shall be
solely that of independent contractors. At no time will either party hold
itself out to be the agent, employee, partner or joint venture of the other
party. Neither party hereto shall have the express or implied right or
authority to assume or create any obligation on behalf or in the name of the
other party, or to bind the other party in regard to any contract, agreement or
undertaking with any third party.
9.2 THIRD PARTY BENEFICIARIES. Each Port-Access Hospital is expressly
intended to be a third party beneficiary of Article 6 of this Agreement;
provided, however, that Heartport must be a party to any action brought to
enforce the terms of Article 6 with respect to any Port-Access Hospital. The
parties agree that depending upon the circumstances, equitable relief such as
specific performance may be the most appropriate remedy for the enforcement of
Article 6.
9.3 ASSIGNMENT. Neither party may assign this Agreement in whole or in
part without the prior written consent of the other party, except that neither
party may, without consent, assign this Agreement to an acquirer of, or
successor to, all or substantially all of such party's business, stock or assets
that relate to the subject matter of this Agreement.
9.4 CHANGE IN CONTROL. This Agreement is expressly intended to survive a
change in control or reorganization or other such corporate restructuring
(including a sale of all or substantially all assets) of either (or both) party
and each party hereby represents and warrants to the other party that it and its
Affiliates and any successor or assign will honor and perform the obligations
set forth in this Agreement in such event.
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9.5 TRADEMARKS. Except as required by law or other governmental
authorities (in which case the party using such trademark, service xxxx or trade
name shall use it with property attribution), neither party shall, without the
express written consent of the other party, use any trademark, service xxxx or
trade name of the other party.
9.6 PUBLICITY. Except as expressly set forth in this Agreement or as
required by law or regulation, neither party shall issue any publicity about the
other party, this Agreement or the parties' performance under this Agreement
without the prior written consent of the other party. In the event that a party
must describe this Agreement in a document to be filed with the United States
Securities and Exchange Commission, such party will provide a draft of the
disclosure to the other party for their reasonable review, comment and written
approval as soon as practicable after preparation (but no less than 24 hours
prior to filing).
9.7 GOVERNING LAW. The rights and obligations of the parties to this
Agreement shall be governed by and construed in accordance with the laws of the
State of California, without regard to the conflict of laws provisions therein.
9.8 HEADINGS. Section headings are for convenience of reference only and
shall not be considered in the interpretation of this Agreement.
9.9 NOTICES. All notices, requests, consents or other communications made
hereunder shall be in writing and will be deemed duly given upon delivery if
delivered personally, upon confirmation of transmission if sent by telex or
facsimile, upon the third business day after mailing if sent by U.S. mail,
postage prepaid, and upon receipt if sent by reputable overnight courier to the
parties at the following addresses or such other addresses as may be designated
in writing by the respective parties:
If to Vista:
Vista Medical Technologies, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxx, XX 00000
Attn: President and Chief Executive Officer
Facsimile: (000) 000-0000
If to Heartport:
Heartport, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
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9.10 CONSENTS. Any consents or approvals given or required to be given
under this Agreement shall be effective only if given in writing and executed by
an executive officer of the party granting such consent or approval.
9.11 WAIVER. The failure of either party to enforce its rights under this
Agreement at any time for any period shall not be construed as a waiver of such
rights.
9.12 ENTIRE AGREEMENT. This Agreement together with any Appendices and
Addenda attached hereto and the Mutual Non-Disclosure Statement dated as of
October 16, 1995, between the parties, constitute the entire agreement between
the parties relating to the subject matter hereof, and supersede all prior or
contemporaneous written or oral negotiations, representations or agreements. No
modification of this Agreement shall be binding on either party unless it is in
writing and signed by both parties. In the event of any discrepancy or conflict
between the terms of this Agreement and any purchase order, invoice or other
report regarding the purchase and sale of Vista Systems hereunder, the terms of
this Agreement shall prevail. Both parties acknowledge that this Agreement is
the result of mutual negotiation and therefore any ambiguity in its terms shall
not be construed against the drafting party.
9.13 ARBITRATION. All disputes, controversies or differences arising out
of or in relation to or in connection with this Agreement, which cannot be
settled by discussion and mutual accord shall be finally settled by binding
arbitration to be conducted in Los Angeles, California, in accordance with the
rules of the American Arbitration Association. Demand for arbitration shall be
made in writing and shall be served upon the party or parties to whom the demand
is addressed in the manner provided for the tender of notices in Section 9.9
hereof. Unless otherwise agreed by the parties, there shall be three (3)
arbitrators, one (1) chosen by each party and the third chosen by the two (2)
arbitrators. The parties agree that all remedies, including equitable remedies,
shall be available to such arbitrator(s); provided, however, that the parties
expressly agree that neither party will seek, nor shall the arbitrator(s) be
entitled to award either party, punitive damages and that any consequential
damages claimed or awarded shall be reasonable. In the event that consequential
damages are awarded in an arbitration hereunder, Vista may submit the
determination that consequential damages are to be awarded and the amount of
such consequential damages (and no other finding of the arbitrator) to any court
having jurisdiction of the matter, and, if so submitted, the arbitrator's award
only as to consequential damages will be non-binding. Furthermore, no such
arbitrator shall have authority to alter, amend, add to, subtract from or
supplement the Agreement to grant punitive or exemplary damages. Judgment upon
the award rendered may be entered in any court having jurisdiction of the
matter. The arbitrators shall be instructed, in connection with the
issuance of their award, to prepare a written finding of facts and law
concerning the award.
9.14 ATTORNEYS' FEES. In the event of litigation or other legal proceeding
between the parties arising from this Agreement, the prevailing party shall be
entitled to
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recover, in addition to any other relief awarded or granted, its reasonable
costs and expenses (including attorneys' fees and expert witness costs) incurred
in the proceeding.
9.15 COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one and the same instrument. If this Agreement is executed in
counterparts, no signatory hereto shall be bound until both the parties named
below have duly executed or caused to be duly executed a counterpart of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized representatives as of the Effective Date.
HEARTPORT, INC.
By:/s/ Xxxxxx X. Xxxxxxx M.D.
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Xxxxxx X. Xxxxxxx, M.D.
President and Chief Executive Officer
VISTA MEDICAL TECHNOLOGIES, INC.
By:/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
President and Chief Executive Officer
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