MANUFACTURING AND SUPPLY AGREEMENT
THIS MANUFACTURING AND SUPPLY AGREEMENT (the "Agreement") is entered into
as of May 1, 2000, by and among SurgX Corporation, a Delaware corporation having
its principal office located at 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000
("Buyer"), and Xxxxxx Electronic Technologies acting by and through Xxxxxx
Bussmann, Inc., a Delaware corporation having its principal office located at
000 Xxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000-0000 ("Xxxxxx").
RECITALS
A. Buyer and XxXxxx-Xxxxxx Company entered into a certain Intellectual
Property Rights License Agreement ("License Agreement") dated August 1997 and a
Trademark License Agreement of even date ("Trademark Agreement"), which
XxXxxx-Xxxxxx Company assigned to Xxxxxx effective December 31, 1998, to which
agreements, as amended and/or assigned, reference is hereby made (the defined
terms in the License Agreement having the same meanings in this Agreement except
as specifically set forth herein).
B. Pursuant to the License Agreement, Xxxxxx has been (i) purchasing from
Buyer the Liquid Polymer Material (herein the "Material") compounded by Buyer
and (ii) selling SurgX(R) transient voltage surge suppression products utilizing
the Material for the electronic circuits industry.
C. On April 6, 2000, Buyer and Xxxxxx amended the License Agreement to
permit Xxxxxx to compound the Material (as well as to sell and distribute
Licensed Products), and Buyer desires that Xxxxxx undertake on an exclusive
basis (except potentially as to Buyer) the manufacture of the Material for (i)
Xxxxxx'x use in producing and selling Licensed Products and (ii) supplying
quantities of the Material to Buyer sufficient for Buyer to meet its obligation
to supply the same to Iriso Electronics Company, Ltd., a Japanese company
("Iriso"), as hereinafter set forth. In furtherance thereof, Buyer and Xxxxxx
have agreed to transfer the responsibility for, and location of, the manufacture
of the Material from Buyer at its Fremont, California facility to Xxxxxx at its
Dublin, California facility (the "Facility").
D. The transfer of production of the Material to Xxxxxx'x Dublin,
California facility involves among other things the transfer to and use by
Xxxxxx of the testing and production equipment more specifically identified on
Schedule 5.1, attached hereto and made a part hereof, necessary for production
of the Material (the "Equipment"), which Equipment the parties contemplate may
be purchased by Xxxxxx as more fully provided below.
TERMS AGREED
In consideration of the premises, and the promises and other valuable
consideration hereinafter provided, the receipt and sufficiency of is
acknowledged, the parties agree as follows:
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1. SUPPLY. Xxxxxx will supply to Buyer as its sole supplier the types and
quantities of the Material required by Buyer to meet its sales requirements to
Iriso as contemplated by Section 2.3 of the License Agreement, subject to the
following terms.
1.1. Material. The products covered by this Agreement are the Liquid
Polymer Material, to be manufactured by Xxxxxx, any improvements or
modifications thereof and replacements therefor and any other products that
Xxxxxx and Buyer may add to this Agreement from time to time by mutual written
agreement of the parties (the "Material").
1.2. Manufacturing. Xxxxxx will use best efforts to manufacture the
Material that Buyer requires and orders from Xxxxxx pursuant to the terms and
conditions hereof in an amount to be determined weekly by Buyer upon two (2)
weeks advance notice to Xxxxxx, which amount shall be not less than 100 cc nor
more than 500 cc per week of Material. The supply of quantities of Material in
excess of 500 cc per week ("Excess Quantities") shall be at a price(s) and on
such other terms and conditions as the parties may negotiate and set forth by
signed addendum(a) hereto. Buyer may purchase Material from any alternate
supplier during the term hereof if and to the extent (a) Xxxxxx ceases to
manufacture the Material, (b) if an event of Force Majeure (hereinafter defined)
restricts or prevents adequate supply of the Material for more than forty-five
(45) days after Buyer gives Xxxxxx notice of intent to seek alternate supply,
(c) the Material fails to meet the warranty set forth in Section 3 below under
the circumstances described in Section 9.2(c), or (d) Buyer on its own
undertakes to compound the Material.
1.3. Labeling and Packaging. Xxxxxx shall xxxx and label the Material
packaging and any enclosed or related documentation as directed in writing by
Buyer.
1.4. Shipping and Payment Terms. Shipments of the Material made against
Buyer's purchase orders shall be F.O.B. Iriso's designated facility, of which
Buyer shall notify Xxxxxx.
1.5. Price. In exchange for and as a condition of continued supply of the
Material as set forth herein, until the earliest to occur of (a) the expiration
of the first 24 months of the term hereof (or earlier termination hereof), (b)
Xxxxxx'x exercise of its option to purchase the Equipment provided in Section
4.2 hereof, or (c) termination (for whatever cause) of Buyer's supply of the
Material to Iriso, Buyer will credit Xxxxxx US$8,000 per month toward the
purchase price of the Equipment agreed in Section 4 hereof (the "Equipment
Credit"), but in no event will Buyer be liable to Xxxxxx for any cash payment of
the price of Material sold to Buyer hereunder during such period except as set
forth in the following sentence. Thereafter, and at any time during the term
with respect to Excess Quantities, the price for the Material, exclusive of
sales and excise taxes, shall be as agreed by the Buyer and Xxxxxx on a
semi-annual basis at least ninety (90) days in advance of the relevant
semi-annual period (payment to be as set forth in the Terms and Conditions of
Sale attached).
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1.6. Terms and Conditions of Sale. All sales of the Material to Buyer by
Xxxxxx shall be subject to the provisions of this Agreement and the Terms and
Conditions of Sale attached hereto and made a part hereof as Schedule 1.6. Any
conflicting provisions of any purchase order of Buyer shall be null and void,
unless specifically accepted in writing by a duly authorized corporate officer
of Xxxxxx. In case of conflict between the specific language of this Agreement
and the Terms and Conditions of Sale, this Agreement shall control over the
Terms and Conditions of Sale. Should Buyer fail to bind its customer to such
terms and conditions in any sale, Buyer shall defend, indemnify and hold
harmless Xxxxxx from and against all claims, demands and liabilities (including
without limitation reasonable attorneys' fees) as a result of or arising from
Buyer's giving or allowing any different or greater warranty, express or
implied, or other terms than those set forth in Buyer's Terms and Conditions of
Sale
1.7. Term. This Agreement shall be effective for a term commencing on the
date first written above and continuing for twelve (12) months thereafter, which
term shall be automatically extended for successive periods of twelve (12)
months unless either Buyer or Xxxxxx, not less than ninety (90) days prior to
the next expiry date, gives notice of intent to terminate the Agreement, unless
terminated otherwise in accordance with Section 9 hereof.
1.8. Extension of Term. If Xxxxxx determines it shall cease manufacture of
the Material, Xxxxxx shall give at least sixty (60) days' written notice of such
intent to Buyer. If after the expiration of such notice period Buyer is required
to continue to supply Iriso and has not obtained alternate supply of the
Material meeting such requirement, Xxxxxx shall continue to supply the Material
to Buyer as set forth in this Agreement for up to 12 months, provided that Buyer
shall assume and reimburse Xxxxxx for 100% of the reasonable costs of production
and delivery of the Material supplied to Buyer; and after such 1-year period
expires Xxxxxx may at its sole discretion and without further notice or
obligation of supply to Buyer, cease production of the Material.
1.9. Royalties. The provisions of the License Agreement notwithstanding,
including without limitation Section 4.1 thereof, no royalties or similar fees
shall be payable to Licensor in respect of the sales to Buyer under this
Agreement, and such sales shall not enter into the calculation of Gross Profit
recognized on the sale of Licensed Products during any relevant Royalty Year.
2. DESIGN. The design and formulation of the Material shall subject to change
as provided in the License Agreement.
3. LIMITED WARRANTY.
3.1. THE FOLLOWING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
XXXXXX WARRANTS THAT THE MATERIAL SUPPLIED HEREUNDER IS MANUFACTURED IN
SUBSTANTIALLY THE SAME MANNER AS MANUFACTURED BY BUYER AS WHEN MANUFACTURE WAS
TRANSFERRED TO THE
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FACILITY, AND WHEN DELIVERED CONFORMS WITH THE SPECIFICATIONS APPLICABLE TO
THE MATERIAL AND IS FREE OF MATERIAL AND WORKMANSHIP DEFECTS, PROVIDED THAT NO
WARRANTY IS MADE WITH RESPECT TO:
(A) ANY MATERIAL OR PRODUCT UTILIZING SAME WHICH HAS BEEN REPAIRED OR
ALTERED OUTSIDE OF THE FACILITY;
(B) ANY MATERIAL OR PRODUCT UTILIZING SAME WHICH HAS BEEN SUBJECT TO
NEGLIGENCE, ACCIDENT (INCLUDING SHIPPING DAMAGE) OR IMPROPER STORAGE;
(C) ANY MATERIAL OR PRODUCT UTILIZING SAME WHICH HAS NOT BEEN INSTALLED,
USED OR MAINTAINED IN ACCORDANCE WITH NORMAL PRACTICE AND IN CONFORMITY WITH
RECOMMENDATIONS AND PUBLISHED SPECIFICATIONS OF XXXXXX; OR
(D) ANY MATERIAL, DEVICE OR SYSTEM NOT MANUFACTURED BY XXXXXX WHICH HAS
BEEN INSTALLED AND USED IN CONJUNCTION WITH THE MATERIAL OR PRODUCT UTILIZING
SAME.
3.2. The obligation of Xxxxxx under this warranty is expressly limited to
replacing any non-conforming Material at no charge to Buyer upon notice within a
period of thirty (30) days from the date shipment of such Material is received.
The failure by Buyer to notify Xxxxxx in writing of non-conforming Material
within the 30-day warranty notice period shall constitute an unqualified waiver
of all warranty claims with respect to such Material.
4. EQUIPMENT.
4.1. Buyer licenses Xxxxxx, and Xxxxxx agrees, to maintain and operate at
Xxxxxx'x expense the Equipment at the Facility for the purposes of supplying the
Material to Buyer as agreed herein, as well as to develop and supply to Xxxxxx
and Xxxxxx'x customers Licensed Products utilizing the Material as contemplated
by the License Agreement, subject to the following provision.
4.2. At any time after the first anniversary of the effective date of this
Agreement Xxxxxx may exercise its option to (a) purchase the Equipment at its
net book value as of May 1, 2000, less the Equipment Credit, (b) cease to
manufacture the Material, (c) return the Equipment to Buyer, F.O.B. the
Facility, in the condition received by Xxxxxx, normal wear and tear excepted, or
(d) enter into a lease of the Equipment on terms mutually agreeable to the
parties for a monthly rental equal to the charge for depreciation for the
Equipment in such month applicable to such equipment under Buyer's accounting
policies and practices (except to the extent otherwise required to comply with
generally accepted accounting principles). However, the foregoing
notwithstanding, upon the second anniversary of the effective date hereof, if
this Agreement has not been subject to earlier termination, the purchase price
shall be deemed equal to the Equipment Credit and all right, title and interest
of
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Buyer in and to the Equipment shall pass to Xxxxxx, AS IS, free and clear of
any lien, security interest or adverse claim, without charge to Xxxxxx.
4.3. Clear Title. Buyer represents and warrants that as of the date hereof
and through such date as ownership of the Equipment is transferred to Xxxxxx (as
provided in the foregoing Section 4.2), Buyer owns, and shall own, the Equipment
free and clear of any lien, security interest, charge or adverse claim and is
and will be empowered and authorized to deliver and sell to Xxxxxx the Equipment
as contemplated herein.
4.4. Inspection. Buyer may inspect the Equipment at the Facility upon
reasonable notice during Xxxxxx'x regular business hours at such location,
provided that such inspection does not unreasonably interrupt the production of
Material and Xxxxxx shall not be responsible for any supply interruptions or
delays caused thereby.
4.5. Risk of Loss and Due Care. Xxxxxx shall bear all risk and
responsibility for any loss of or damage to the Equipment, whether caused by
fire, theft, water or otherwise from the date of receipt of the Equipment at the
Facility until the Equipment is returned to Buyer or purchased by Xxxxxx. During
such period Xxxxxx will exercise due care in operating and maintaining the
Equipment in a safe and secure area at the Facility and comply with all laws
which might in any way affect Buyer's ownership of the Equipment, defending,
indemnifying and holding harmless Buyer from and against (i) any loss of or
damage to the Equipment, (ii) any levy, attachment, lien, or process involving
the Equipment and (iii) any personal injury or property damage caused by
Xxxxxx'x operation or maintenance of the Equipment at the Facility.
4.6. Sale Documentation. At Xxxxxx'x request, Buyer shall execute and
deliver to Xxxxxx a Xxxx of Sale for the Equipment and such other and further
actions and documents as may be necessary to effect the sale to Xxxxxx of the
Equipment provided for above.
5. EXCLUSIVITY OF REMEDIES; LIMITATION OF LIABILITY.
5.1. THE REMEDIES PROVIDED FOR IN THIS AGREEMENT SHALL CONSTITUTE THE SOLE
RECOURSE OF BUYER AGAINST XXXXXX FOR BREACH OF ANY OF XXXXXX'X OBLIGATIONS UNDER
THIS AGREEMENT, WHETHER THE CLAIM IS MADE IN TORT OR IN CONTRACT, INCLUDING
CLAIMS BASED ON WARRANTY, NEGLIGENCE, STRICT LIABILITY, DECEIT, FRAUD,
MISREPRESENTATION OR OTHERWISE.
5.2. ANY PROVISION HEREOF TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT
SHALL XXXXXX BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT,
INCLUDING NEGLIGENCE), NOR FOR LOST PROFITS, NOR SHALL XXXXXX'X LIABILITY FOR
ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH (A) THE MANUFACTURE, SALE,
DELIVERY, USE, MAINTENANCE,
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REPAIR OR MODIFICATION OF THE MATERIAL IN EXCESS OF THE PURCHASE PRICE OR (B)
THE EQUIPMENT IN EXCESS OF THE THEN-CURRENT VALUE THEREOF AS DETERMINED IN
ACCORDANCE WITH SECTION 4.2. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE
REMEDY.
6. INDEMNITY FOR PERSONAL INJURY OR PROPERTY DAMAGE.
6.1. Xxxxxx shall defend, indemnify and hold harmless Buyer, its affiliate
companies, and any of their employees, officers and directors from and against
any loss, cost, damage or expense arising from any claims for personal injury or
death, or damage to property, relating to the Material supplied or to be
supplied to Buyer (i) in favor of Xxxxxx, its employees, directors or officers,
and (ii) in favor of any other persons or entities to the extent any such loss,
cost, damage or expense is caused by the negligence of Xxxxxx, its employees,
officers or directors.
6.2. Buyer shall indemnify and hold harmless Xxxxxx, its affiliate
companies, and any of their employees, officers and directors from and against
any loss, cost, damage or expense arising from any claims for personal injury or
death, or damage to property, relating to the Material supplied or to be
supplied to Buyer except to the extent Xxxxxx is responsible under Section 6.1
above.
6.3. The indemnifying party under this Section 6 shall pay any settlements
or judgments and any costs, damages and attorneys' fees finally awarded against
the indemnified parties which are attributable to a claim which is covered by
this Section 6; provided the foregoing obligation shall be subject to the
indemnified party's notifying indemnifying party promptly in writing of the
claim, giving it the exclusive control of the defense thereof and providing all
reasonable assistance in connection therewith. The indemnified party may
participate in the defense of any such action at its own expense. The
indemnifying party shall have full control of any settlement or judgment that
completely exonerates or releases the indemnified party. Any disposition that
does not fully discharge or involves extraordinary relief affecting the
indemnified party shall be subject to prior notice to and the consent of such
party (which shall not be unreasonably withheld).
7. INTELLECTUAL PROPERTY INDEMNITY.
7.1. Subject to the provisions of Section 7.2, Buyer shall defend,
indemnify and hold harmless Xxxxxx from and against any claim, demand or
liability that any Material sold under or by reason of this Agreement, including
without limitation that the incorporation or combination by Buyer, Iriso, or any
direct or indirect customer thereof, of such Material with other components or
products, infringes a United States or foreign patent, trademark, copyright or
other intellectual property right.
7.2. Buyer will not be obligated to Xxxxxx under this Agreement for any
claims which are based upon (a) any modification of the Material by Xxxxxx to
which Buyer has not agreed; or (b) Buyer's compliance with Xxxxxx'x designs or
instructions (except insofar as they conform to Buyer's designs or
instructions).
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7.3. The indemnifying party under this Section 7 shall pay any settlements
or judgments and any costs, damages and attorneys' fees finally awarded against
the indemnified parties which are attributable to a claim which is covered by
this Section 7; provided the foregoing obligation shall be subject to the
indemnified party's notifying indemnifying party promptly in writing of the
claim, giving it the exclusive control of the defense thereof and providing all
reasonable assistance in connection therewith. The indemnified party may
participate in the defense of any such action at its own expense. The
indemnifying party shall have full control of any settlement or judgment that
completely exonerates or releases the indemnified party. Any disposition that
does not fully discharge or involves extraordinary relief affecting the
indemnified party shall be subject to prior notice to and the consent of such
party (which shall not be unreasonably withheld).
8. PROPRIETARY INFORMATION.
8.1. During the course of the parties' relationship under this Agreement,
each party may be given access to confidential or proprietary information of the
other or in the other's possession. The parties hereto agree that such
information shall constitute Confidential Information as defined in Section 12.1
of the License Agreement and shall be treated as set forth in Section 12.2 of
such agreement (the references therein to the License Agreement being deemed to
refer to this Agreement for purposes of this Section 8), subject to the
following.
8.2. Upon request of the Disclosing Party after termination of this
Agreement, the Receiving Party shall return to the Disclosing Party the
Disclosing Party's Confidential Information furnished to the Receiving Party and
the Receiving Party shall destroy any documents and records containing, derived
from or referring to such Confidential Information, provided, however, that
after termination of this Agreement Xxxxxx may retain in Xxxxxx'x custody or
control, and use, any Technical Information (defined in the License Agreement)
as permitted by the License Agreement.
9. TERMINATION OF AGREEMENT.
9.1. Subject to Section 9.2, either party may terminate this Agreement,
with or without cause, by giving the other party sixty (60) days' written notice
(a) at any time should Xxxxxx determine it shall cease manufacture of the
Material (subject to Section 1.8 hereof), or (b) otherwise after the first
anniversary of the effective date hereof.
9.2. Either party may terminate this Agreement forthwith by written notice
to the other if:
(a) the other party suspends or discontinues its business operations
or makes an assignment for the benefit of its creditors or commences voluntary
proceedings for liquidation and bankruptcy;
(b) involuntary bankruptcy proceedings are commenced against the other
party;
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(c) the other party fails to comply with any of the material
provisions of this Agreement on its part to be performed and such failure
continues for a period of ten (10) days after written notice, unless the remedy
for such failure reasonably requires more than ten (10) days and the party
failing to comply is diligently pursuing a proper cure for such claimed failure
and does complete such cure within a reasonable period of time; or
(d) Buyer resumes manufacturing the Material in quantities sufficient
to meet the requirements of Iriso.
9.3. Termination of the License Agreement shall simultaneously effect a
termination of this Agreement, unless the License Agreement is terminated
pursuant to Section 14.4 thereof.
10. DISPUTE RESOLUTION.
10.1. Settlement Attempt. Any claim or dispute arising in connection with
this Agreement (a "Claim") shall be submitted promptly to the parties' chief
operating officers, whose designees shall meet within thirty (30) days of such
submission to seek in good faith an amicable settlement. In seeking an amicable
settlement, they may consult with a neutral third party mediator if both agree
in writing.
10.2. Binding Arbitration. Any Claim which is not settled by the parties
within 60 days of notice thereof first being given by either party to the other
shall be finally settled by arbitration to be held in the city where Buyer has
its main offices, or such other place as the parties may agree, in accordance
with the Commercial Arbitration Rules and the Guidelines for Expediting Larger
Complex Commercial Arbitrations of the American Arbitration Association. There
shall be three arbitrators, all of whom shall conduct themselves as neutrals,
and whose chairman shall be an attorney experienced in arbitrating large
commercial disputes. Each party shall appoint one arbitrator, and the two
arbitrators shall appoint the third. Judgment upon any award rendered by the
arbitrators shall be binding on the parties and enforceable in any court of
competent jurisdiction. The award rendered shall not include punitive damages
but shall state its reasoning. Any party may request a court to provide interim
relief without waiving the agreement to arbitrate. The expenses of arbitration
shall be shared equally by the parties (unless otherwise determined by the
arbitrators); provided, however, that each party shall pay for and bear the cost
of its own experts, evidence and legal counsel.
11. MISCELLANEOUS.
11.1. Notices. Any notices required or permitted under this Agreement shall
be sent to the respective addresses of the parties shown herein. These addresses
for notice may be changed by notice as provided herein. Notices shall be deemed
received as follows: in the case of notices sent by certified mail, return
receipt requested, upon receipt or five (5) days after mailing, whichever occurs
sooner; in the case of commercial courier service, three days following the date
notice is sent, Saturdays, Sundays, and holidays excepted; in the case of
facsimile transmission, immediately upon
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the sending party's receipt of confirmation of transmission; and in the case of
hand delivery, upon delivery.
11.2. Assignability. This Agreement is not assignable or transferable to
any third party without the mutual written consent of Buyer and Xxxxxx;
provided, however, that Xxxxxx shall have the right, without the consent of
Buyer, to assign Xxxxxx'x rights and obligations under this Agreement to a
parent, subsidiary or affiliated entity, or to a successor entity by reason of
merger, consolidation, reorganization or operation of law, or to a successor to
whom Xxxxxx has sold or otherwise transferred the business related to the
Material.
11.3. Relationship. Nothing herein contained shall be construed to place
Buyer and Xxxxxx in the relationship of partners or joint venturers or principal
and agent or create any entity or association, and neither party shall have the
power to obligate or bind the other in any manner whatsoever.
11.4. Force Majeure. Neither Xxxxxx nor Buyer shall be liable for any
failure to perform its obligations under this Agreement resulting directly or
indirectly from causes beyond either party's control, including but not limited
to acts of God or of the public enemy, acts or any order of a government, fires,
floods, or other natural disaster, embargoes, accidents, explosions, strikes or
other labor disturbances, shortages of fuel, power or raw materials, incidents
of war, or other events causing the inability of Xxxxxx or Buyer, acting in good
faith with due diligence, to perform it obligations under this Agreement ("Force
Majeure"). Written notification of an occurrence of Force Majeure shall be sent
to the other party within five (5) days of the event.
11.5. Entire Agreement; Conflicts. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and no modification of this Agreement shall be effective unless it is in writing
and is signed by a duly authorized representative of each party. There are no
understandings, representations or warranties except as herein expressly set
forth. This Agreement supersedes any and all previous agreements between the
parties with respect to the subject matter hereof, whether written or oral.
11.6. Failure to Enforce. The failure or delay of a party hereto to enforce
any of its rights under this Agreement shall not be deemed to be a continuing
waiver or modification by such party of any of its rights under this Agreement,
and a party may, within the time provided by the applicable law, commence
appropriate legal proceedings to enforce any or all of its rights under this
Agreement. Any failure to enforce or delay in enforcement shall not constitute a
defense.
11.7. Enforceability. Should any part or provision of this Agreement be
held unenforceable or in conflict with the law of any jurisdiction, the validity
of the remaining parts or provision shall not be affected by such holdings.
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11.8. Governing Law. This Agreement shall be construed, interpreted and
applied in accordance with and governed by the laws of the State of Missouri
(excluding any conflicts of law principles that would cause the application of
the law of another jurisdiction).
IN WITNESS WHEREOF, Xxxxxx and Buyer have caused this Agreement to be duly
executed in duplicate as of the date first hereinabove written.
Xxxxxx Bussmann, Inc. SurgX Corporation
By: /s/ Xxxxxx Xxxx By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxx Name: Xxxxxxx Xxxxxxxxx
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Title: SurgX Operations Mgs. Title: CFO
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