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EXHIBIT 10.14
WARRANT AGREEMENT
This Warrant Agreement ("Warrant Agreement") is made as of May _____,
1998, by and among General Automation, Inc., a Delaware corporation ("Company"),
Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxx as Trustees of Lenawee Trust u/t/d
December 30, 1992 ("Lenawee"), Dito Caree Limited Partnership, a Nevada limited
partnership ("Dito Caree"), and Four JM, LLC, a California limited liability
company ("Four JM"). Company, Lenawee, Dito Caree, and Four JM are sometimes
hereinafter individually referred to as a "Party" or collectively referred to as
the "Parties."
1.0 RECITALS.
1.1 Company and Lenders have previously entered into the MOU,
pursuant to which Lenders agreed to make the Loan to Company, all as more fully
set forth in the MOU.
1.2 Pursuant to the provisions of the MOU, as additional
consideration to Lenders for agreeing to make the Loan to Company, Company has
agreed to issue the Original Warrants to Lenders, and Company has also agreed
that if required pursuant to the provisions of this Warrant Agreement, the
Company shall issue the Additional Warrants to Lenders, all as more fully set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and terms set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties agree as follows:
2.0 DEFINITIONS.
2.1 "ACT" shall mean the Securities Act of 1933, as amended.
2.2 "ADDITIONAL WARRANTS" shall mean the additional warrants to
be issued by the Company to Lenders' designees representing cumulatively the
right to acquire one hundred thousand (100,000) Shares of common stock of the
Company, pursuant to Section 3.4 herein.
2.3 "CLOSING" shall mean the closing of the Loan and the issuance
of the Original Warrants, which shall occur on the Closing Date.
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2.4 "CLOSING DATE" shall mean May 4, 1998, or such other date as
mutually agreed to by the Parties.
2.5 "COMPANY" shall mean General Automation, Inc., a Delaware
corporation.
2.6 "DEED OF TRUST" shall mean that certain Deed of Trust, of
even date herewith, granted by Company in favor of Lenders as security for the
Note.
2.7 "DITO CAREE" shall mean Dito Caree Limited Partnership, a
Nevada limited partnership.
2.8 "DUE DATE" shall mean the date that all amounts are due and
payable under the Note.
2.9 "FOUR JM" shall mean Four JM, LLC, a California limited
liability company.
2.10 "LENAWEE" shall mean Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxx
as Trustees of Lenawee Trust u/t/d December 30, 1992.
2.11 "LENDERS" shall mean, collectively, Dito Caree, Four JM and
Lenawee.
2.12 "LOAN" shall mean that certain loan in the original
principal amount of Nine Hundred Thousand Dollars ($900,000.00), as evidenced by
the Note and secured by the Deed of Trust.
2.13 "LOAN DOCUMENTS" shall collectively mean the Note, the Deed
of Trust, this Warrant Agreement, the Original Warrants, the Additional
Warrants, Loan Brokerage Agreement, and the investment representation letters of
the Lenders or their designees.
2.14 "MOU" shall mean that certain Memorandum of Understanding
dated March 31, 1998, entered into between Company and the Lenders.
2.15 "NOTE" shall mean that certain Secured Note, dated as of
even date herewith, executed by Company in favor of Lenders, a copy of which is
attached hereto as EXHIBIT "A".
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2.16 "ORIGINAL WARRANTS" shall collectively mean three (3)
separate Warrants issued to each of the Lenders' designees (who are identified
on EXHIBIT "D" hereto and who will execute and deliver to the Company an
investment representation letter in the form attached hereto as EXHIBIT "C"), in
amounts designated by Lenders, representing cumulatively the right of Lenders to
acquire two hundred thousand (200,000) shares of common stock of the Company,
pursuant to the terms and conditions of this Warrant Agreement, in the form
attached hereto as EXHIBIT "B".
2.17 "PARTIES" shall collectively mean Company, Dito Caree, Four
JM and Lenawee, and "Party" shall mean any of the foregoing individually.
2.18 "PERSON" shall mean an individual, a partnership, a
corporation, a limited liability company, a limited liability partnership, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
2.19 "SHARES" shall mean those shares of the Company's common
stock to be issued upon the exercise of the Original Warrants or the Additional
Warrants.
2.20 "TARGET IRR" shall mean a minimum internal rate of return
from and after the Closing Date, through and including the Valuation Date, of
twenty percent (20%), when taking into consideration the interest received under
the Note, as well as the value of the Original Warrants as of the Valuation
Date, as determined pursuant to Section 3.3 herein.
2.21 "TOTAL LOAN CONSIDERATION" shall have the meaning ascribed
in Section 3.3 herein.
2.22 "VALUATION DATE" shall mean the date on which the value of
the Original Warrants is determined pursuant to in Section 3.3 herein, which
shall occur at the earlier of: (i) the Due Date of the Note, or (ii) the date
upon which all amounts due under the Note have been satisfied in full by
Company.
2.23 "VOW" shall have the meaning ascribed to it in Section 3.3
hereof.
2.24 "WARRANT AGREEMENT" shall mean this Warrant Agreement.
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3.0 AUTHORIZATION AND ISSUANCE OF ORIGINAL WARRANTS.
3.1 AUTHORIZATION BEFORE CLOSING. On or prior to the Closing, the
Company will authorize the issuance of the Original Warrants to the Lenders'
designees to purchase two hundred thousand (200,000) shares of the Company's
common stock in the form attached hereto as EXHIBIT "B."
3.2 ISSUANCE OF ORIGINAL WARRANTS. Subject to the terms and
conditions of this Warrant Agreement, in consideration of the Loan to the
Company, the Company will issue the Original Warrants to the Lenders' designees
at the Closing. The Original Warrants shall have a term of five (5) years and
shall be exercisable as provided in the Warrant attached hereto as EXHIBIT "B."
3.3 VALUATION OF ORIGINAL WARRANTS. The Original Warrants shall
be valued on the Valuation Date to determine whether the Lenders have achieved
the Target IRR. The value of the Original Warrants shall be determined by taking
the weighted average of closing sales prices of the shares of the Company's
common stock sold on the American Stock Exchange or NASDAQ (or such other
national or regional exchange on which the Company's shares are listed for sale
and that then constitutes the principal market for the Company's stock) on each
of the immediately preceding three (3) trading days prior to the Valuation Date,
computed on a per share basis, and subtracting from such average the exercise
price of the Original Warrants and then multiplying said amount by the aggregate
number of shares represented by the Original Warrants , to arrive at the value
of the Original Warrants ("VOW"). The VOW shall be added together with all
interest payments actually received by Lenders under the Note (exclusive of
default interest and provided that all amounts due under the Note have been paid
in full), and such sum shall equal the "Total Loan Consideration." The Total
Loan Consideration shall be used to calculate Lenders' internal rate of return
on the outstanding principal balance of the Loan (as the same may change from
time to time) from the Closing Date to the Valuation Date.
3.4 ISSUANCE OF ADDITIONAL WARRANTS. If either: (i) the internal
rate of return achieved by Lenders on the Loan (calculated as provided in
Section 3.3) is less than the Target IRR, but the Company is not then in default
under the Note, or (ii) the Company defaults under the Note, which default is
not cured within the applicable cure period, then the Company shall immediately
issue the Additional Warrants to the Lenders' designees, provided however, that
(a) all of
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Lenders' designees shall execute and deliver an investor representation letter
in the form attached as EXHIBIT "C" hereto prior to the Company's issuance of
any Additional Warrants to such designee, and (b) with respect to any Lender's
designee who did not receive an Original Warrant, the Company shall have no
obligation to issue an Additional Warrant to such designee if the Company shall
determine, in good faith, that an Additional Warrant may not be issued to such
designee without registration under the Securities Act of 1933, as amended,
and/or registration or qualification under any applicable state securities laws.
If the Additional Warrants are issued pursuant to Section 3.4(i), then the
exercise price for the Additional Warrants shall be set as necessary to achieve
the Target IRR based on the value of the Company's common stock on the Valuation
Date (as determined in Section 3.3). If the Additional Warrants are issued
pursuant to Section 3.4(ii), then the exercise price shall be One Dollar and
Nineteen Cents ($1.19) per share. Notwithstanding the aforementioned, the
Company, at its option, has the right to pay to the Lenders cash in order to
achieve the Target IRR in lieu of issuing the Additional Warrants pursuant to
this Section 3.0. The Additional Warrants will have a term of one (1) year
commencing on the Valuation Date, and will be in substantially the form of the
Original Warrants, provided, however, that the Additional Warrants will be
exercisable at any time after their issuance.
3.5 CLOSING. The Closing shall occur on the Closing Date or at
such other time and in such manner as the Parties may agree, provided that the
conditions to the Closing set forth in Section 5.0 herein have been satisfied.
At the Closing, the Company will deliver to Lenders' designees the Original
Warrants registered in the name of Lenders' designees.
4.0 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents, warrants, and covenants to the Lenders as follows:
4.1 ORGANIZATION AND STANDING. The Company and each of its
subsidiaries is duly organized and a validly existing corporation in good
standing under the laws of the jurisdiction in which it is organized and has all
requisite corporate power and authority for the ownership and operation of its
properties and for carrying on its business as now conducted and as now proposed
to be conducted. The Company and each of its subsidiaries is duly licensed or
qualified and in good standing as a foreign corporation authorized to do
business in all jurisdictions in which the character of the property owned or
leased, or the nature of the activities conducted by it makes such license or
qualification necessary.
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4.2 CORPORATE ACTION. The Company has all necessary corporate
power and has taken all corporate action required to enter into the MOU and the
Loan Documents, and any all such Loan Documents when executed will be valid and
enforceable obligations of the Company. Sufficient shares of authorized but
unissued common stock of the Company have been reserved by appropriate corporate
action in connection with the issuance of the Original Warrants. The issuance of
the Shares upon exercise of the Original Warrants and/or the Additional Warrants
are not subject to preemptive or other preferential rights, or similar statutory
or contractual rights, either pursuant to any agreement or instrument to which
the Company is a party or which are otherwise binding upon the Company. Upon
exercise of the Original Warrants and/or the Additional Warrants, the Company
shall comply with all applicable regulations and requirements and take all
necessary actions so that the Shares issued upon exercise of the Warrants shall
be validly authorized and duly issued, including without limitation the listing
of such Shares with any exchanges on which the Company's shares are traded.
Lenders acknowledge that compliance with such regulations and requirements may
delay the issuance of the Shares for approximately thirty (30) days.
Notwithstanding the foregoing, except as required under the Original Warrant or
under the Additional Warrant, in no event shall the Company be required to
register the Shares under the Securities Act of 1933, as amended, or to register
or qualify the Shares under the securities laws of any state. This Warrant
Agreement, the MOU and other Loan Documents are valid and binding obligations of
the Company, enforceable in accordance with their respective terms.
4.3 GOVERNMENTAL APPROVALS. All authorizations, consents,
approvals, licenses, exemptions from or filings, or registrations of any court
or governmental department, commission, board, agency or instrumentality,
domestic or foreign, necessary for, or in connection with, the offer, issuance,
sale, execution, or delivery by the Company or for the performance by it of its
obligations under this Warrant Agreement, the Original Warrants, or the Shares
shall have been made prior to, and shall be effective as of, the Closing.
4.4 LITIGATION. Except as described in the Company's most recent
form 10-K, there is no litigation or governmental proceeding or investigation
pending or threatened against the Company or any of its subsidiaries or
affecting any of its properties or assets that might result, either in any case
or in the aggregate, in a material adverse change in the business, prospects,
operations, affairs, or conditions of the Company or its subsidiaries or any of
their properties
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or assets, or that might call into question of the validity of this Warrant
Agreement, the Loan or any of the Loan Documents.
4.5 TAXES. The Company has accurately prepared and timely filed
all federal, state and other tax returns required by law to be filed by it, has
paid or made provisions for the payment of all taxes shown to be due and all
additional assessments received by it, and adequate provisions have been made
and are reflected in the Company's financial statements for all current taxes
and other charges to which the Company is subject and which are not currently
due and payable.
4.6 SECURITIES ACT OF 1933. The Company has complied and will
comply with all applicable federal and state securities laws in connection with
the issuance and sale of the Original Warrants, provided that the investor
representation letters delivered to the Company by the Lenders and the Lenders'
designee are accurate in all material respects. Neither the Company nor anyone
acting on its behalf will offer to sell the Shares or similar securities to, or
solicit offers with respect thereto, from, or enter into any preliminary
conversations or negotiations relating thereto, with any Person so as to bring
the issuance and sale of the Original Warrants under the registration provisions
of the Act.
5.0 CONDITIONS TO LENDERS' OBLIGATIONS TO CLOSE. Lenders' obligations to
close and fund the Loan are subject to the issuance of the Original Warrants at
the Closing and the fulfillment, as of the Closing Date, of the following
conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Company in Section 4.0 hereof shall be true and correct
when made and as of the Closing Date.
5.2 COVENANTS. All covenants and agreements and conditions
contained in this Warrant Agreement or in any of the Loan Documents to be
performed by the Company on or prior to the Closing Date shall have been
performed or complied with.
5.3 PERMITS. The Company shall have obtained all consents,
permits and waivers necessary and appropriate for the consummation of the
transactions contemplated by this Warrant Agreement and the Loan Documents,
which need to be obtained prior to the Closing.
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6.0 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each and every
representation, warranty and covenant set forth herein is true as of the date of
execution hereof, shall be true as of the Closing Date of the subject
transaction, and shall survive the Closing.
7.0 NO MODIFICATIONS OR WAIVERS.
7.1 MUST BE WRITTEN. Waivers or modifications of this Warrant
Agreement, or any covenant, condition, or limitation contained herein, are valid
only if in writing that is separately signed or initialed by the Parties,
provided however, that any written waiver or modification of this Warrant
Agreement that is signed by Lenawee and Dito Caree on behalf of the Lenders
shall be binding on all of the Lenders.
7.2 NO USE AS EVIDENCE. One or more waivers or modifications of
any covenant, term or condition in this Warrant Agreement by any Party shall not
be construed by any other Party as a waiver or modification applicable to any
subsequent breach of the same covenant, term or condition. Evidence of any such
waiver or modification may not be offered or received in evidence in any
proceeding, arbitration, or litigation between the parties arising out of or
affecting this Warrant Agreement, or a Party's rights or obligations under it.
This limitation does not apply if the waiver or modification is in writing and
duly executed as provided above.
7.3 ENTIRE AGREEMENT. This Warrant Agreement (including any
attachments and exhibits hereto), together with the Loan Documents and the MOU,
contains the Parties' sole and entire agreement regarding the subject matter
hereof, and supersedes any and all other agreements between them. In the event
of any inconsistency or conflict between the MOU and the Loan Documents, the
terms and conditions of the Loan Documents shall prevail.
8.0 JOINT PREPARATION. The Parties to this Warrant Agreement have been
represented by competent counsel. This Warrant Agreement is therefore deemed to
have been jointly prepared by the Parties, and any uncertainty or ambiguity
existing in it shall not be interpreted against any Party under the presumptions
of California Civil Code Section 1654, but rather shall be interpreted according
to the rules generally governing the interpretation of contracts.
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9.0 COOPERATION AND FURTHER ACTIONS. The Parties agree to perform any
and all acts and to execute and deliver any and all documents necessary to carry
out the terms of this Warrant Agreement.
10.0 PROFESSIONAL FEES. If a lawsuit, arbitration, or other proceedings
are instituted by any Party to enforce any of the terms or conditions of this
Warrant Agreement against any other Party hereto, the prevailing Party in such
litigation, arbitration, or proceedings shall be entitled, as an additional item
of damages, to such reasonable attorneys' and other professional fees (including
but not limited to expert witness fees), court costs, arbitrators' fees,
arbitration administrative fees, travel expenses, and other out-of-pocket
expenses or costs of such other proceedings as may be fixed by any court of
competent jurisdiction, arbitrator, or other judicial or quasi-judicial body
having jurisdiction thereof, whether or not such litigation or proceedings
proceed to a final judgment or award. For the purposes of this Section 10.0, any
Party receiving an arbitration award or a judgment for damages or other amounts
shall be deemed to be the prevailing Party, regardless of amount of the damage
awarded or whether the award or judgment was based upon all or some of such
Party's claims or causes of action.
11.0 COUNTERPARTS. This Warrant Agreement may be executed in several
counterparts, each of which so executed shall be deemed to be an original, but
such counterparts shall together constitute and be one in the same instrument.
12.0 SEVERABILITY. If any part, clause, or condition of this Warrant
Agreement is held to be partially or wholly invalid, unenforceable, or
inoperative for any reason whatsoever, such shall not affect any other provision
or portion hereof, which shall continue to be effective as though such invalid,
inoperative, or unenforceable part, clause or condition had not been made
13.0 BINDING UPON SUCCESSORS. This Warrant Agreement shall be binding
upon and inure to the benefit of the Parties hereto and their respective heirs,
legal representatives, successors and assigns. Any transfer of the Original
Warrants or the Additional Warrants or any of the Shares received upon exercise
of the Warrants shall only be transferred in compliance with the provisions of
such Warrant and applicable law.
14.0 GOVERNING LAW AND VENUE. All questions concerning this Warrant
Agreement, its construction, and the rights and liabilities of the Parties
hereto shall be interpreted and enforced in accordance with the laws of the
State of California as applied to contracts which are executed and performed
entirely within
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the state. For purposes of this Agreement, sole and proper venue shall be Orange
County, California.
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15.0 INTERPRETATION.
15.1 SECTION HEADINGS. The section headings of this Warrant
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
15.2 CAPITALIZED TERMS. Except as otherwise expressly provided
herein, all capitalized terms defined in this Warrant Agreement shall have the
meaning ascribed to them herein.
15.3 GENDER AND NUMBER. Whenever required by the context, the
singular shall include the plural, the plural shall include the singular, and
the masculine gender shall include the neuter and feminine genders and vice
versa.
16.0 NOTICES. For purposes hereof, delivery of written notice shall be
complete upon receipt of electronic facsimile, provided that any facsimile
notice shall only be deemed received if (a) the transmission thereof is
confirmed, and (b) facsimile notice is followed by written notice, made either
by (i) personal delivery thereof, or (ii) via deposit in certified mail return
receipt requested, postage prepaid, within three (3) business days following the
facsimile notice. Notices shall be addressed to the parties as follows:
Company: General Automation,
a Delaware corporation
Attn: Xxxxxxx Xxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With required copy to
Company's Attorney: Xxxxx XxXxxxxxx, Esq.
Higham, XxXxxxxxx & Xxxxxxx LLP
00000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Lenders: Dito Caree Limited Partnership
Attn: Xxxxx X. Xxxx
0000 Xxxxxx Xxxxxx Xxxxxxx, #000
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Four JM, LLC
Attn: Xxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxx, Trustees of the
Lenawee Trust u/t/d 12/30/92
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a required copy to
Attorney for Lenders: The Xxxxx Firm
Attn: Xxxx X. Xxxxxx, Esq.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice shall be deemed given on the date it is sent via
facsimile. Any party may change the address to which to send notices by
notifying the other party of such changes in writing in accordance with this
section.
17.0 TIME OF ESSENCE. The Parties acknowledge and agree that time is
strictly of the essence with respect to each and every term, condition,
obligation and provision hereof. Failure to timely perform any of the terms,
conditions, obligations or provisions hereof by any party shall constitute a
material breach of this Warrant Agreement by the party so failing to perform.
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18.0 RELATIONSHIP CREATED. Nothing contained herein or in any schedule,
attachment, or exhibit hereto shall create any partnership, joint venture or
other agreement between the Parties hereto.
19.0 THIRD PARTY BENEFICIARIES. No term or provision of this Warrant
Agreement is intended to be, or shall be, for the benefit of any person, firm,
organization or corporation not a party hereto, and no such other person, firm,
organization or corporation shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the Parties have executed this Warrant Agreement as
of the date first written above.
GENERAL AUTOMATION,
a Delaware corporation
By: __________________________
XXXXXXX XXXXX
Its: Chief Executive Officer
By: __________________________
Its:
"COMPANY"
DITO CAREE LIMITED PARTNERSHIP,
a Nevada limited partnership
By: GAMEBUSTERS, INC.,
a Nevada corporation
Its: General Partner
By: _________________________
XXXXX X. XXXX
Its: President
[SIGNATURES CONTINUED ON NEXT PAGE]
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FOUR JM, LLC,
a California limited liability company
By: ___________________________
XXXXXX X. XXXXX
Its: President
LENAWEE TRUST,
U/T/D DECEMBER 30, 1992
By: ___________________________
XXXXX X. XXXXXXXX
Its: Trustee
By: ___________________________
XXXXXXX X. XXXXX
Its: Trustee
"LENDERS"
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EXHIBIT "A"
SECURED NOTE
Please see attached.
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EXHIBIT "B"
ORIGINAL WARRANT
Please see attached.
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EXHIBIT "C"
INVESTOR REPRESENTATION LETTER
Please see attached.
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EXHIBIT "D"
Lenders' Designees
LENDER PARTY DESIGNEE NUMBER OF WARRANTS
Dito Caree Limited Xxxx Xxxxxx Pickup 133,334
Partnership and Devon Xxxxx Pickup
or Successor Trustee, as
Trustees of the Vintage
Trust Dated October
28, 1993
Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx as Trustee 61,111
Xxxxx X. Xxxxxxxx, Trustees of the 92653 Trust Dated
of the Lenawee Trust Dated December 29, 1995
December 30, 1992
Four JM LLC, a Four JM LLC, a 5,555
California limited California limited
liability company liability company
