MAXXON/GLOBE
JOINT VENTURE AGREEMENT
This AGREEMENT, made by and entered into as of November 3, 2005, by and
among Maxxon, Inc., a Nevada Corporation ("Maxxon") and Globe Med Tech, Inc.,
Inc. a Texas Corporation ("Globe") (hereinafter the parties may be collectively
referred to as "Joint Venturers").
WITNESSETH
WHEREAS, the parties hereto desire to form a Joint Venture (hereinafter
referred to as "Joint Venture") for the term and the conditions hereinafter set
forth.
WHEREAS Maxxon and Globe have jointly developed and incorporated a
reverse vacuum safety syringe technology to needle products and a reverse vacuum
IV catheter;
WHEREAS Maxxon and Globe desire to collaborate with respect to the
patenting, developing, manufacturing, marketing, and distribution of such needle
products throughout all the world.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is agreed by and among the parties hereto as follows:
DEFINITIONS
In addition to the other terms defined elsewhere herein, the following terms
shall have the following meanings when used in this Agreement (and any term
defined in the singular shall have the same meaning when used in the plural, and
vice versa, unless stated otherwise):
"Affiliate" shall mean any corporation or other business entity
controlled by, controlling of, or under common control with a Party (as
hereinafter defined). For this purpose, `control" of any corporation o other
business entity shall mean direct or indirect beneficial ownership of at least
fifty (50%) percent of the voting interests of such corporation or other
business entity, or such other relationship that constitutes actual control of
such corporation or other business entity.
"Business Combination Transaction" shall mean any transaction or series
of related transactions involving (a) a merger, consolidation, share exchange,
reorganization, recapitalization, business combination or similar transaction
unless, immediately following the consummation of such transaction or series of
related transactions, the common shareholders of Maxxon immediately prior
thereto will continue to be holders of at least a majority of the common equity
securities of the ultimate parent entity surviving such transaction or series of
related transactions or (b) any sale or other transfer (other than to a directly
or indirectly wholly-owned subsidiary of Maxxon) of all or a substantial amount
of the assets of Maxxon or its subsidiaries, taken as a whole.
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"Calendar Quarter" shall mean a period of three (3) consecutive
calendar months commencing on January 1, April 1, July 1, or October 1 of any
Calendar Year (as hereinafter defined)
"Calendar Year" shall mean, for the first Calendar year, that time
period that commences on the Effective Date and end on the following December
31, and for all subsequent Calendar Years, the twelve-month period commencing on
January 1 and ending on December 31.
"Confidential Information" shall mean the existence and terms of this
Agreement, an any and all technical data, information, materials, and other
know-how including, but not limited to, trade secrets presently owned by or
developed by, or on behalf of either Party and/or its Affiliates during the term
of this Agreement, which relate to the Products (as hereinafter defined), their
development, manufacture, regulatory filings, promotion, marketing,
distribution, sale or use and any and all financial data and information
relating to the business of either of the Parties and/or of their Affiliates,
which a Party and/or its Affiliates discloses to the other Party and/or its
Affiliates in writing and identifies as being confidential, or if disclosed
orally, visually, or through some other media, is identified as confidential at
the time of disclosure and is summarized in writing within thirty (30) days of
such disclosure and identified as confidential, except any portion thereof,
which:
(a) is known to the receiving Party and/or its Affiliates at the time
of the disclosure, as evidenced by its written records;
(b) is disclosed to the receiving Party and/or its Affiliates by a
Third Party having a right to make such disclosure;
(c) becomes patented, published, or otherwise part of the public domain
through no fault of the receiving Party and/or its Affiliates;
(d) is independently developed by or for the receiving party and/or its
Affiliates without use of Confidential Information disclosed hereunder as
evidenced by its written records; or
"Current Good Manufacturing Practices" or "cGMPs" shall mean the
current Good Manufacturing Practices as described in 21 CFR 211, as amended or
updated from time to time.
""Patent Rights" shall mean all United States patents and patent
applications owned or controlled by, or licensed to the Joint Venture with a
right to sublicense, during the term of this Agreement, which relate to the
Products including, but not limited to, the patents and patent applications and
all substitutions, extensions, reissues, renewals, divisions, continuations,
improvements, or continuations-in-part therefore or thereof.
"Party" shall mean Globe Medical Tech, Inc. or Maxxon, Inc. and
"Parties" shall mean Globe Medical Tech, Inc., Maxxon, Inc. and the Joint
Venture.
"Person" shall mean a natural person, a corporation, a partnership, a
trust, a joint venture, any governmental authority, and any other entity or
organization.
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"Product or Products" shall mean one, several, or all of the Joint
Venture Products, including any subsequent versions of such Products.
"Third Party" shall mean any Person that is not a Party or Affiliate of
a Party.
ARTICLE I
BASIC STRUCTURE
ss.1.1 Form
In General. The Parties hereby form a Joint Venture and not a Partnership.
In this regard, it is the intention of the parties:
(a) That the Venture not engage in a business enterprise.
(b) That no party shall have the right to bind the other without
doing so pursuant to the power of attorney herein provided
for.
In this regard, each Venturer (the "Indemnifier") hereby agrees to hold
harmless, indemnify, and defend (including but not limited to, for the cost of
reasonable attorney fees) each other Venturer (the "Indemnified Venturer(s)")
for any liabilities that arise out of the activities of such Indemnifier unless
such Indemnifier has specific written authority to engage in such activity on
behalf of such Indemnified Venturer(s).
ss.1.2 Name
The business of the Joint Venture shall be conducted under the name
"Maxxon/Globe" Joint Venture.
ss.1.3 Office
(a) Joint Venture. The principal office of the Joint Venture shall
be located at 0000 Xxxxx Xxxx Xxxxxx, Xx. Xxxxxxxx, XX 00000,
or at such other place as the Joint Venturers may from time to
time designate. All copies of correspondence will be forwarded
to Globe's offices at 0000 Xxxx Xxx Xxxxxxx Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxx 00000.
(b) Operating Office. Joint venture operations will be conducted
from both Maxxon and Globe offices, or at such other place as
the Joint Venturers may from time to time designate.
(c) Operations.
ss.1.4 Term
In General. The Joint Venture shall commence on a date set by mutual agreement
of the parties to this Agreement and shall continue for fifteen (15) year(s)
unless earlier terminated in the following manner:
(a) By applicable Oklahoma State law, or
(b) By death, insanity, bankruptcy, retirement, expulsion, or
disability of any of the then Joint Venturers
(c) Or as otherwise provided herein in Article VIII.
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ss.1.5 Purpose
The purpose for which the Joint Venture is organized is for the development,
patenting, manufacturing, marketing, and distribution of the reverse vacuum
syringe and reverse vacuum IV catheter.
ss.1.6 Employees
It is understood and agreed that for all purposes under the Joint Venture
Agreement, that the Maxxon/Globe Joint Venture shall not have any employees.
ARTICLE II
FINANCIAL ARRANGEMENTS
ss.2.1 Initial Contributions of Joint Venturers
Each Joint Venturer has contributed to the initial capital of the Joint Venture
property in the amount and form indicated below:
(a) Globe. Globe shall contribute their safety syringe IV catheter
including patent rights related thereto to the Joint Venture.
Globe will continue to evaluate new safety products and
patents and will attempt to bring related products and
technologies to the Joint Venture.
(b) Maxxon. Maxxon will contribute their safety syringe technology
and all patent rights related thereto to the Joint Venture.
ss.2.2 Additional Capital Contribution
If at any time during the existence of the Joint Venture it becomes necessary to
increase the capital with which the Joint Venture is doing business then:
Proceeds from the sale of Maxxon common stock shall be used as additional
capital contributions for the Joint Venture.
ss.2.3 Percentage Share of Profits and Capital
(a) Definition of Profits. Profits shall be the monies received
from the sale of Joint Venture Products after deducting all of
Maxxon's & Globe's costs attributable to the Joint Venture
including but not limited to reimbursement of expenses and
direct and indirect costs.
(b) Initial Percentage. The percentage share of profits and
capital of each Joint Venturer shall be (unless modified by
the terms of this Agreement or by Joint Venturers, in writing)
as follows.
MAXXON 50%
GLOBE 50%
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ss.2.4 Return of Capital Contributions
(a) Rights of Venturer. No Joint Venturer shall have the right to
demand the return of such entities' capital contributions.
(b) Capital Equipment. Any equipment purchased by the Joint
Venture for use during the term of the Joint Venturer shall be
accounted for as an expense and shall become the property of
the Joint Venture.
ss.2.5 Distributions
Distributions to the Joint Venturers. The Managing Partner shall have sole
discretions regarding distributions.
ss.2.6 Compensation
Unless they otherwise agree, no Joint Venturer shall receive any compensation
from the Joint Venture, nor shall any Joint Venturer receive a drawing account
from the Joint Venture.
ARTICLE III
DEMONSTRATION PRODUCT
ss.3.1 Demonstration Product
Globe will produce 1,000 pieces of the safety syringe for Maxxon within six to
eight weeks. The total cost for this run is $40,000 of which the parties will
split 50/50. These molds, will be able to produce 10,000 pieces. Each party will
share 50% of the product cost after the first 1,000 pieces. All costs of patents
and Federal Drug Administration approvals and/or certification will be split
50/50 by the parties.
ARTICLE IV
QUALITY ASSURANCE
ss.4.1 Compliance
Joint Venturers shall comply with all applicable local or municipal, state, and
federal laws, and regulations concerning the manufacture of the Products.
ss.4.2 Complaint handling and Customer Service
Any and all product complaints of which the Joint Venture become aware relating
to the Products during the terms of the Agreement shall promptly be forwarded to
each other. Notification shall be given by telephone, with a facsimile
confirmation following within (1) business day. Globe shall be responsible for
addressing all product complaints related to the Joint Venture's distribution,
order processing, shipping and handling of Products and all other product
complaints.
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ss.4.3 Recalls
In the event the Joint Venture shall be required (or shall voluntarily decide)
to initiate a recall, withdrawal or field correction of, or field alert report
with respect to, any Product manufactured by the Joint Venture and distributed
by the Joint Venture pursuant to this Agreement, whether or not such recall,
withdrawal, field correction, or field report has been requested or ordered by
any governmental agency, Globe shall notify Maxxon and shall fully cooperate to
implement the same. Maxxon shall make all statements to the media, including
press releases and interviews for publication or broadcast. Globe agrees to make
no statement to the media, except to refer to the media to Maxxon for comment,
unless otherwise required by law, and in any such event, Globe shall cooperate
with Maxxon on the content of any such statement. Globe shall indemnify Maxxon
against all reasonable and necessary costs and expenses which Maxxon may incur
as a result of any recall, withdrawal, field correction or field alert to the
extent that it is the direct result of any fault or omission attributable to
Globe. Maxxon shall indemnify Globe against all reasonable and necessary costs
and expenses which Globe may incur as a result of any recall, withdrawal, field
correction or field alert to the extent that it is the direct result of any
fault or omission attributable to Maxxon.
ARTICLE V
TAXES
ss.5.1 Taxes
Any federal, state, county or municipal sales or use tax, excise, customs
charges, duties, or similar charge, or any other tax assessment, license, fee,
or other similar charge lawfully assessed or charged on the sale or
transportation of Product shall be paid by the Joint Venture.
ARTICLE VI
INTELLECTUAL PROPERTY
ss.6.1 Proprietary Marks and Good Will
"Joint Venture's Proprietary Marks" include all trademarks, trade names, and
logotype employed by Joint Venture and include, but are not limited to (i) the
reverse vacuum safety syringe and (ii) the reverse vacuum IV catheter.
Joint Venturers agree that the use of the Joint Venture Proprietary Marks shall
inure to the benefit of the Joint Venture. The Parties hereby: I) acknowledges
the validity of Joint Venture's Proprietary Marks; ii) acknowledges that Joint
Venturers are the owners of the Joint Venture Proprietary Marks and of all
goodwill associated with Joint Venture's Proprietary Marks or with the Products;
iii) agrees not to acquire any interest in, infringe upon, contest, or take any
other action to injure or to assist another to injure joint Venturers' rights in
Joint Venture's Proprietary Marks; and iv) agrees that any interest which may be
acquired by the Parties during the term of this Agreement or within one year
thereafter in Joint Venture's Proprietary marks or in goodwill associated with
Joint Venture's Proprietary Marks or the Products shall be acquired on behalf of
and for the benefit of the Joint Venture and shall be assigned to the Joint
Venture upon request at no charge.
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ARTICLE VII
MANAGEMENT AND HOLD HARMLESS
ss.7.1 Managing Joint Venturer
(a) In General. The Managing Joint Venturer shall be Maxxon.
(b) Additional Liabilities. It is not the parties intention for the
Managing Joint Venturer to incur any additional liabilities for the
performance of the duties of Managing Joint Venturer.
(c) Restriction of Rights. No Venturer has any right to bind the other
Venturer except as expressly provided herein.
(d) Management. All business decisions and budgets shall be agreed to
and approved by both parties (e) Books and Records. It shall be the
Managing Joint Venturers obligation to maintain the books and records
of the Joint Venture.
(f) Accounting. The Managing Joint Venturer shall make an
accounting to the other Joint Venturer at the close of each
business quarter.
ss.7.2 Hold Harmless
(a) Nothing to the contrary in this Agreement between the parties
withstanding, each party (the "Indemnifying Party") agrees to
indemnify the other (the "Indemnified Party") from and against
any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind whatsoever that may at any time
arise out of their relationship as Joint Venturers to the
extent which:
(1) The Indemnifying Party has, by its actions, generated
a claim that the Indemnified party is liable for the
acts of the Indemnifying Party, whether or not such
actions were, in and of themselves, justified;
(2) The Indemnifying Party has, by its actions, generated
a claim for a contractual obligation other than may
arise directly as a result of this Joint Venture
Agreement between the Indemnifying Party and the
Indemnified Party;
(3) The Indemnifying Party has, by tortuous or other
improper actions, generated a claim against the
Indemnified Party or any property of the Indemnified
Party or any property owned by, leased by or from, or
otherwise in the possession or control of the Joint
Venture; or
(4) A claim that may otherwise be imposed on, incurred
by, or asserted against the Indemnified Party in any
way relating to or arising out of this Agreement, the
Joint Venture Agreement, or any documents
contemplated by or referred to herein (the
"Collateral Documents"), or the transactions
contemplated hereby, or any action taken or omitted
by the Indemnifying Party under or in connection with
any of the foregoing;
Provided that the Indemnifying Party shall
not be liable for:
(i) The payment of any portion of the
authorized liabilities of the Joint
Venturer; or
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(ii) Any obligations, losses, damages,
penalties, actions judgments, suits,
costs, expenses, or disbursements
resulting primarily from the
Indemnified Party's negligence or
willful misconduct.
ARTICLE VIII
TERM AND TERMINATION
ss.8.1 Termination for Insolvency
Either Party may terminate this Agreement by giving the other at least sixty
(60) days prior written notice upon the bankruptcy or insolvency of the other
Party.
ss.8.2 Effect of Termination
(a) Accrued Obligations. Except as otherwise provided, expiration or
termination of this Agreement for any reason shall not release any party hereto
from liability accrued under this Agreement prior to the expiration or
termination, nor preclude either party hereto from pursuing any rights or
remedies accrued prior to such expiration or termination or accrued at law or in
equity with respect to any breach of this Agreement.
ARTICLE IX
CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS
ss.9.1 Confidentiality
The Parties acknowledge and agree that during the term of this Agreement, each
of them and their Affiliates may exchange Confidential Information, and the
disclosure and use of any such Confidential Information shall be governed by the
provisions of Article IX. Each Party shall use the Confidential Information of
the other Party only for the purpose of the activities contemplated by this
Agreement and shall not disclose such Confidential Information to a Third Party
except in accordance with the provisions of this Agreement. The Parties shall
ensure that their Affiliates keep all Confidential Information exchanged
hereunder confidential in accordance with the provision hereof as though the
Affiliates were parties hereto. This provision shall remain in effect for a
period of five (5) years after termination or expiration of this Agreement for
all Confidential Information excluding trade secrets. Trade secrets shall be
kept confidential by the Receiving Party (as defined in Section 9.2 hereof).
ss.9.2 Handling of Trade Secrets.
During the course of its performance hereunder, a Party (the "Disclosing Party")
may desire or be requested to disclose Confidential Information to the other
Party (the "Receiving Party"), which the Disclosing Party considers a trade
secret. In such event, the Disclosing Party first shall inform the Receiving
Party, on a non-confidential basis, the general nature of the trade secret
information. The Receiving Party shall have ten (10) days to decide whether it
wishes to have such trade secrets disclosed to it and to inform the Disclosing
Party in writing that it wishes to receive such a disclosure. Any trade secrets
so disclosed between the Parties shall be marked "Trade Secret", and the
Receiving Party shall not disclose or use
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such trade secret for the term of this Agreement and for a period of five (5)
years after the expiration or termination of this Agreement except as expressly
permitted under this Agreement. In the event the Disclosing Party discloses the
trade secrets to the Receiving Party without written approval of the Receiving
Party and/or without appropriately marking such information as "Trade Secret"
that trade secret shall be handled as Confidential Information under Section
9.1.
ss.9.3 Public Announcements
Maxxon and Globe agree to mutually approve the text of an initial press release
to be jointly issued announcing the execution of this Agreement or the
consummation of the transactions contemplated hereby and to consult with each
other prior to making any other public statement concerning this Agreement and
the transactions contemplated by this Agreement which approval shall not be
unreasonably withheld. However, following the approval of any such press
release, the facts and matters contained in such press release shall no longer
be deemed Confidential Information. The foregoing shall not be deemed to prevent
either party from making any public disclosure which may be required of either
party or its Affiliates under the federal securities laws or by the rules and
regulations of any national securities exchange upon which the securities of
either party or its Affiliates are traded. However, if a party is required to
make such a disclosure, the disclosing party shall notify the other party and
provide the disclosure and the rationale for it in writing to the other party at
least thirty (30) days prior to making such disclosure. The other party shall
have the opportunity to review that portion of the disclosure which references
such party or this Agreement or the subject matter of this Agreement and suggest
changes or deletions to protect the Confidential Information, competitive
position or sensitive commercial information of such party. The disclosing party
shall implement such suggested changes to the extent allowed by applicable law
or regulation.
ARTICLE X
DISSOLUTION
ss.10.1 Dissolution
(a) Account of Assets, Liabilities and Transactions. If the Joint
Venture shall hereafter be dissolved for any reason
whatsoever, a full and general account of its assets,
liabilities and transactions shall at once be taken. Such
assets may be sold and turned into cash as soon as possible
and all debts and other amounts due the Joint Venture
collected. The proceeds thereof shall thereupon be applied as
follows:
(1) To discharge the debts and liabilities of the Joint Venture
and the expenses of the liquidation.
(2) To pay each Joint Venturer or legal representative any
interest or profits to which each Joint Venturer shall then
be entitled.
(3) To divide the surplus, if any, among the Joint Venturers or
legal representatives as follows:
(i) First (to the extent of each Joint
Venturer's then capital account) in
proportion to their then capital accounts.
(ii) Then, according to each Joint
Venturer's then percentage share of capital.
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ARTICLE XI
MISCELLANEOUS
ss.11.1 Accounting Year, Books, Statements
(a) In General. The Joint Venture's fiscal year shall commence on
January 1st of each year and shall end on December 31st of each
year. Full and accurate books of account shall be kept at such
place as the managing Joint Venturer may from time to time
designate, showing the condition of the business and finances of
the Joint Venture; each Joint Venturer shall have access at their
sole expense to such books of account and shall be entitled to
examine them during ordinary business hours, at a location
determined by the Managing Joint Venturer. At the end of each
working week, the Managing Joint Venturer shall cause the Joint
Venture's accountant to prepare a balance sheet setting forth the
financial position of the Joint Venture as of the end of that
working week and a statement of operations (income and expenses)
for that working week. A copy of the balance sheet and statement
of operations shall be delivered to each Joint Venturer as soon
as it is available.
(b) Waiver of Objections. Each Joint Venturer shall be deemed to have
waived all objections to any transaction or other facts about the
operation of the Joint Venture disclosed in such balance sheet
and/or statement of operations unless he or she shall have
notified the managing Joint Venturer in writing of any such
objections within fifteen (15) days of the date on which such
statement is mailed.
ss.11.2 Banking
(a) All monies received from the sale of Joint Venture Products will
be deposited in a newly opened bank account in the name of
Maxxon/Globe Joint Venture. The managing Joint Venturer shall
solely maintain the account and make any and all distributions
and all checks over $20,000 shall be approved by both parties.
Checks and drafts shall be drawn on the Joint Venture's bank
account for Joint Venture purposes only and shall be signed by
the managing Joint Venturer or their designated agent.
ss.11.3 Titles and Subtitles
Usage. Titles of the paragraphs and subparagraphs are placed herein for
convenient reference only and shall not to any extent have the effect of
modifying, amending or changing the express terms and provisions of this Joint
Venture Agreement.
ss.11.4 Words and Gender or Number
Usage. As used herein, unless the context clearly indicates the contrary, the
singular number shall include the plural, the plural the singular, and the use
of any gender shall be applicable to all genders.
ss.11.5 Execution in Counterpart
This Joint Venture Agreement may be executed in any number of counterparts, each
of which shall be taken as an original.
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ss.11.6 Severability
If any parts of this Agreement are found to be void, the remaining provisions of
this Agreement shall nevertheless be binding with the same effect as though the
void parts were deleted.
ss.11.7 Effective Date
This Agreement shall be effective only upon execution by all of the proposed
Joint Venturers.
ss.11.8 Waiver
No waiver of any provisions of this Agreement shall be valid unless in writing
and signed by the person or party against whom charged.
ss.11.9 Applicable Law
This Agreement shall be subject to and governed by the laws of Oklahoma.
ss.11.10 Venue
The exclusive venue for any dispute related to this Agreement shall be the
District Court in and for Tulsa County.
ss.11.11 Jurisdiction
The exclusive jurisdiction for any dispute related to this Agreement shall rest
with the District Court in and for Tulsa County. The Joint Venturers hereby
waive any removal rights to Federal Court. If this waiver is found to be
invalid, the exclusive jurisdiction shall rest with the United States District
Court for the Northern District of Oklahoma.
ss.11.12 Force Majeure
Any delay in the performance of any of the duties or obligations of either Party
hereto (except the payment of money) shall not be considered a breach of this
Agreement and the time required for performance shall be extended for a period
equal to the period of such delay, provided that such delay has been caused by
or is the result of any acts of God, acts of the public enemy, insurrections,
riots, embargoes, labor disputes, including strikes, lockouts, job actions,
boycotts, fires, explosions, floods, shortages of qualified equipment, material
or energy, or other unforeseeable causes beyond the control and without the
fault or negligence of the Party so affected. The affected Party shall give
prompt notice to the other party of such cause, and shall take promptly whatever
reasonable steps are necessary to relieve the effect of such cause. If such
event prevents or will prevent performance of a material provision of this
Agreement by one Party for more than six (6) months, then the other party may
immediately terminate this Agreement upon written notice to the non-performing
party.
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ss.11.13 Notices
All notices hereunder shall be delivered personally, or by registered or
certified mail (postage prepaid), or by recognized private mail carrier or by
facsimile with a confirmation copy sent by registered or certified mail (postage
prepaid) to the following addresses of the respective Parties.
If to Maxxon:
Maxxon, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xx. Xxxxxxxx, Xxxxx Xxxxxxxx 00000 ATTN: Xxx Xxxxx
CEO
With a copy to:
Xxxxxxx & Wallis, P.P.
0000 Xxxxx Xxxxxx Xxx.
Xxxxx, Xxxxxxxx 00000
If to Globe:
Global Medical Tech, Inc.
0000 X. Xxx Xxxxxxx Xxxx X.
Xxxxxxx, Xxxxx 00000
ATTN: Xxxx Xx
Notices shall be effective upon receipt if personally delivered or delivered by
facsimile, or on the third business day following the date of mailing or the
carrier receipt date if by private mail carrier. A Party may change its address
listed above by notice to the other Party.
ss.11.14 Assignment
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, executors,
administrators, successors and assigns.
In WITNESSETH hereof this 3rd day of November, 2005.
Globe Med Tech, Inc. Maxxon, Inc.
/s/ XXXX XX /s/ XXXXXXX X. XXXXX
---------------------------- ------------------------------
By: Xxxx Xx By: Xxx Xxxxx
President CEO
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