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Exhibit 10.5
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of February 28, 2001 (this
"Agreement"), is made by Xxxx X. Xxxxxxxxx ("Xxxxxxxxx ") in favor of Elektryon,
a Nevada corporation (the "Company").
WHEREAS, Xxxxxxxxx beneficially owns 865,000 shares of common stock
of the Company and such common stock is subject to a Voting Agreement, dated as
of the date hereof, among Xxxxxxxxx and the Company, inter alia (the "Voting
Agreement"). Capitalized terms used herein but not defined herein shall have the
meanings assigned to such terms in the Voting Agreement.
WHEREAS, Xxxxxxxxx and the Company, inter alia, are parties to a
Separation and Release Agreement, dated as of the date hereof (the "Separation
Agreement"). Pursuant to the Separation Agreement, on the date hereof, Xxxxxxxxx
will, execute and deliver to the Company a promissory note in the principal
amount of $5,128,500.00 (the "Note"). The Company is relying on this Agreement
in accepting the Note and would not accept the Note or consummate certain of the
transactions contemplated by the Separation Agreement without the execution and
delivery of this Agreement by Xxxxxxxxx. Xxxxxxxxx will obtain a benefit as a
result of the transactions under the Separation Agreement (and the agreements
contemplated thereby), which benefits are hereby acknowledged, and accordingly,
desires to enter into this Agreement. Certain obligations of the Company set
forth in the Separation Agreement are conditioned on the execution and delivery
by Xxxxxxxxx of a pledge agreement in the form hereof to secure the following
(collectively, the "Secured Obligations"): (i) all obligations of Xxxxxxxxx at
any time and from time to time under the Note, (ii) all obligations of Xxxxxxxxx
at any time and from time to time under this Agreement; and (iii) all
obligations of Xxxxxxxxx, and all rights of the Company, under the Separation
Agreement, including the obligations of Xxxxxxxxx to surrender certain Pledged
Securities (as defined below) to the Company in accordance with Section 15 of
the Separation Agreement.
As used herein, "Lien" means any lien (statutory or other),
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or
other security agreement (or interest) or preferential arrangement of any kind
or nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title retention
agreement).
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Accordingly, Xxxxxxxxx and the Company hereby agree as follows:
1. Pledge. As security for the payment and performance in full of
the Secured Obligations, Xxxxxxxxx hereby transfers, grants, bargains, sells,
conveys, hypothecates, pledges, sets over, endorses over, and delivers unto the
Company, and grants to the Company, a security interest in, (i) any and all
shares of Common Stock beneficially owned or otherwise held from time to time,
directly or indirectly, by Xxxxxxxxx, including, without limitation the shares
of capital stock listed in Schedule I annexed hereto (the "Pledged Stock") and
(ii) all proceeds of the Pledged Stock, including, without limitation, all cash,
securities or other property at any time and from time to time receivable or
otherwise distributed in respect of or in exchange for any of or all such
Pledged Stock (the items referred to in clauses (i) and (ii) being collectively
called the "Collateral"). Upon delivery to the Company, any securities now or
hereafter included in the Collateral including, without limitation, the Pledged
Stock (collectively, the "Pledged Securities") shall be accompanied by undated
stock powers duly executed in blank or other instruments of transfer
satisfactory to the Company and by such other instruments and documents as the
Company may request. Each delivery of Pledged Securities shall be accompanied by
a schedule showing a description of the securities theretofore and then being
pledged hereunder, which schedule shall be attached hereto as Schedule I and
made a part hereof. Each schedule so delivered shall supersede any prior
schedules so delivered.
Any and all
a. noncash and cash dividends made on or in respect of the Pledged
Securities,
b. stock or dividends paid or payable in cash or otherwise made on
or in respect of the Pledged Securities in connection with a partial or total
liquidation or dissolution, and
c. instruments, securities, other distributions in property, return
of capital, capital surplus or paid-in surplus or other distributions made on or
in respect of Pledged Securities, whether paid or payable in cash or otherwise,
whether resulting from a subdivision, combination or reclassification of the
outstanding capital stock of the issuer of any Pledged Securities or received in
exchange for or as a distribution in respect of Pledged Securities or any part
thereof, or in redemption thereof, as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a party or
otherwise,
shall be and become part of the Collateral (and all rights and authority to
receive and retain the same shall be vested with the Company and Xxxxxxxxx shall
not have any right to retain the same), and, if received by Xxxxxxxxx, shall not
be commingled by him with any of his other funds or property but shall be held
separate and apart therefrom, shall be held in
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trust for the benefit of the Company and shall be forthwith delivered to the
Company in the same form as so received (with any necessary endorsement). The
Company shall have the sole and exclusive right and authority to receive and
retain any dividends, instruments, securities, other distributions in property,
return of capital, capital surplus or paid in surplus or other distributed
assets described in clauses (a), (b) and (c) above as Collateral hereunder.
2. Delivery of Collateral. Xxxxxxxxx agrees to deliver promptly or
cause to be delivered to the Company any and all Pledged Securities, and any and
all certificates or other instruments or documents representing any of the
Collateral (together with any necessary endorsement).
3. Representations, Warranties and Covenants. Xxxxxxxxx hereby
represents, warrants and covenants to and with the Company that:
(a) except for the security interest granted to the Company and as
contemplated by the obligations and agreements of Xxxxxxxxx under the Separation
Agreement and the Voting Agreement, including, without limitation, the
obligation of Xxxxxxxxx to surrender Pledged Securities to the Company as
contemplated by Section 15 of the Separation Agreement, Xxxxxxxxx (i) is and,
subject to the provisions hereof, will at all times continue to be the direct
owner beneficially and of record of the Pledged Securities he is pledging
hereunder, (ii) holds the Collateral that he is pledging hereunder free and
clear of all Liens, charges, encumbrances and security interests of every kind
and nature, and the Pledged Securities are not subject to any options to
purchase or any similar or other rights of any person or entity, (iii) will make
no assignment, pledge, sale, hypothecation, transfer of, or create any security
interest in, or grant any Lien in, the Collateral that he is pledging (or will
pledge) hereunder including, without limitation, by virtue of becoming bound by
any agreement which restricts in any manner the rights of any present or future
holder of any Pledged Security with respect thereto, and (iv) will cause any and
all Collateral, whether for value paid by Xxxxxxxxx or otherwise, to be
forthwith deposited with the Company and pledged or assigned hereunder; provided
that Xxxxxxxxx may sell, transfer, dispose or surrender the Pledged Securities,
solely to the extent that (a) Xxxxxxxxx is permitted to do so under Section 5 of
the Separation Agreement and such transaction is accomplished in compliance with
the Separation Agreement, (b) the transaction is accomplished in accordance with
the Voting Agreement, and (c) the proceeds from such sale, transfer, disposition
or surrender, are applied as required pursuant to the Note; provided, further,
that Xxxxxxxxx may transfer the Pledged Securities when required by Section 15
of the Separation Agreement and/or Section 4.3 of the Voting Agreement (but only
if the proceeds from such transfer are applied in accordance with this
Agreement, the Separation Agreement, the Voting Agreement and the Note);
(b) Xxxxxxxxx (i) has good right and legal authority to pledge the
Collateral he is pledging hereunder in the manner hereby done or contemplated,
(ii) will not amend,
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modify or supplement any Pledged Security without the prior written consent of
the Company, nor forgive any indebtedness or obligation evidenced by any Pledged
Security, and (iii) will defend his title or interest thereto or therein against
any and all attachments, Liens, claims, encumbrances, security interests or
other impediments of any nature, however arising, of all persons or entities
whomsoever;
(c) no consent or approval of any governmental body or regulatory
authority or any securities exchange was or is necessary to the validity of the
pledge effected hereby;
(d) by virtue of the execution and delivery by Xxxxxxxxx of this
Agreement, when the certificates, instruments or other documents representing or
evidencing the Collateral are delivered to the Company in accordance with this
Agreement, the Company will obtain a valid and perfected first priority Lien
upon and security interest in such Collateral as security for the repayment and
performances of the Secured Obligations, prior to all other Liens and
encumbrances thereon and security interests therein; and
(e) the pledge effected hereby is effective to vest in the Company
the rights of the Company in the Collateral as set forth herein.
4. Registration in Nominee Name; Denominations. Upon the occurrence
and during the continuance of an Event of Default (as defined in the Note), the
Company shall have the right (in its sole and absolute discretion with
subsequent notice to Xxxxxxxxx) to transfer to or to register the Pledged
Securities in its own name or the name of its nominee. In addition, the Company
shall at all times have the right to exchange the certificates representing
Pledged Securities for certificates of smaller or larger denominations for any
purpose consistent with this Agreement.
5. Voting Rights; Dividends; etc. The parties hereto acknowledge
that the Pledged Securities are subject to the Voting Agreement and Xxxxxxxxx
shall at all times exercise voting and other consensual rights, if any, with
respect to any Pledged Securities in accordance with the Voting Agreement. Upon
the occurrence of an Event of Default (if the Company elects in its sole
discretion), all rights of Xxxxxxxxx to exercise voting and other consensual
rights shall cease, and all such rights shall thereupon become vested in the
Company or its nominee, which shall have the sole and exclusive right and
authority to exercise such voting and other consensual rights and powers. The
parties hereto acknowledge and agree that Xxxxxxxxx has granted a proxy and
power of attorney relating to the voting of and other actions with respect to
the Pledged Securities pursuant to the Voting Agreement.
In order to permit the Company to receive all dividends and other
distributions which it may be entitled to receive under Section 1, Xxxxxxxxx
shall promptly execute and
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deliver (or cause to be executed and delivered) to the Company all such proxies,
dividend payment orders and other instruments as the Company may from time to
time request.
Unless an Event of Default shall have occurred and be continuing (in
any such case, the Company shall be entitled to exercise any and all rights and
remedies contemplated hereby), the parties hereto agree that in the event any
tender offer or exchange offer is made for the Common Stock they will act in
accordance with the Voting Agreement and cause any Pledged Securities to be
tendered or exchanged as set forth in the Voting Agreement, provided the
proceeds from such tender offer or exchange offer are delivered to the Company
in accordance with this Agreement, the Separation Agreement, the Note and the
Voting Agreement.
6. Remedies upon Event of Default. If an Event of Default shall have
occurred and be continuing, the Company may sell or otherwise dispose of all or
any part of the Collateral, at a public or private sale or at any broker's board
or on any securities exchange, for cash, upon credit or for future delivery as
the Company shall deem appropriate. Each such purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
Xxxxxxxxx, and Xxxxxxxxx hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which Xxxxxxxxx now has or may at any
time in the future have under any rule of law or statute now existing or
hereafter enacted.
The Company shall give Xxxxxxxxx 10 days' written notice (which
Xxxxxxxxx agrees is reasonable notice within the meaning of Section 9-504(3) of
the Uniform Commercial Code as in effect in Nevada (the "Uniform Commercial
Code")) of the Company's intention to make any sale of Collateral. Such notice,
in the case of a public sale, shall state the time and place for such sale and,
in the case of a sale at a broker's board or on a securities exchange, shall
state the board or exchange at which such sale is to be made and the day on
which the Collateral, or portion thereof, will first be offered for sale at such
board or exchange. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Company may
fix and state in the notice (if any) of such sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Company may (in its sole and absolute discretion)
determine. The Company shall not be obligated to make any sale of any Collateral
if it shall determine not to do so, regardless of the fact that notice of sale
of such Collateral shall have been given. The Company may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Company until the sale price is paid by the purchaser or
purchasers thereof, but the Company shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral so
sold and, in
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case of any such failure, such Collateral may be sold again upon like notice. At
any public sale made pursuant to this Section 6, the Company or any subsequent
holder of the Note (or successor to the Company under the Separation Agreement)
may bid for or purchase, free (to the extent permitted by law) from any right of
redemption, stay or appraisal on the part of Xxxxxxxxx (all said rights being
also hereby waived and released to the extent permitted by law), with respect to
the Collateral or any part thereof offered for sale and the Company or any such
subsequent holder of the Note (or successor to the Company under the Separation
Agreement) may make payment on account thereof by using any monetary claim then
due and payable to the Company or any such subsequent holder of the Note (or
successor to the Company under the Separation Agreement) from Xxxxxxxxx as a
credit against the purchase price, and the Company or any such subsequent holder
of the Note (or successor to the Company under the Separation Agreement) may,
upon compliance with the terms of sale, hold, retain and dispose of such
property in accordance with the terms of this Agreement without further
accountability to Xxxxxxxxx therefor; provided, that, the Company shall give
Xxxxxxxxx a receipt evidencing and a summary of any such transaction. For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Company shall be free to carry
out such sale and purchase pursuant to such agreement, and Xxxxxxxxx shall not
be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Company shall have entered into
such an agreement all Events of Default shall have been remedied and the Secured
Obligations paid or satisfied in full. As an alternative to exercising the power
of sale herein conferred upon it, the Company may proceed by a suit or suits at
law or in equity to foreclose this Agreement and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver.
In addition to any other rights and remedies available to the
Company hereunder or otherwise, in the event of an Event of Default due to
Xxxxxxxxx'x failure to comply with Section 15 of the Separation Agreement, the
Company may, in its sole discretion, effectuate the transactions contemplated by
such Section on behalf of Xxxxxxxxx.
7. Application of Proceeds of Sale. The proceeds of any sale of
Collateral, as well as any Collateral consisting of cash, shall be applied by
the Company as follows:
FIRST, to the payment of all reasonable costs and expenses incurred
by the Company in connection with such sale or otherwise in connection with this
Agreement or any of the Secured Obligations, including, but not limited to, all
court costs and the reasonable fees and expenses of its agents and legal
counsel, or to protect and preserve the Collateral and any other reasonable
costs or expenses incurred in connection with the exercise of any right or
remedy hereunder;
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SECOND, to the payment in full of principal and interest in respect
of the Note outstanding (and any other amounts payable under the Note);
THIRD, to the payment in full of any amounts owing to the Company
pursuant to any of the Concurrent Agreements; and
FOURTH, to Xxxxxxxxx, his successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
8. Company Appointed Attorney-in-Fact. Xxxxxxxxx hereby appoints the
Company his attorney-in-fact for the purpose of carrying out the provisions of
this Agreement and taking any action and executing any instrument which the
Company may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, the Company shall have the right, with full power
of substitution either in the Company's name or in the name of Xxxxxxxxx, to ask
for, demand, xxx for, collect, receive receipt and give acquittance for any and
all moneys due or to become due and under and by virtue of any Collateral, to
endorse checks, drafts, orders and other instruments for the payment of money
payable to Xxxxxxxxx representing any interest or dividend, or other
distribution payable in respect of the Collateral or any part thereof or on
account thereof and to give full discharge for the same, to settle, compromise,
prosecute or defend any action, claim or proceeding with respect thereto, and to
sell, assign, endorse, pledge, transfer and make any agreement respecting, or
otherwise deal with, the same; provided, however, that nothing herein contained
shall be construed as requiring or obligating the Company to make any commitment
or to make any inquiry as to the nature or sufficiency of any such payment
received by the Company or to present or file any claim or notice, or to take
any action, other than to (a) exercise reasonable care of any Collateral in the
physical custody of the Company and (b) act in a commercially reasonable manner
with respect to the Collateral or any part thereof and otherwise act in good
faith with respect thereto or any moneys due or to become due in respect thereof
or any property covered thereby, and, subject to the foregoing, no action taken
by the Company or omitted to be taken with respect to the Collateral or any part
thereof shall give rise to any defense, counterclaim or offset in favor of
Xxxxxxxxx or to any claim or action against the Company in the absence of the
gross negligence or wilful misconduct of the Company.
9. No Waiver. No failure on the part of the Company to exercise, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by the Company preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. The
Company shall not be deemed to have waived any rights hereunder or under any
other agreement or instrument unless such waiver shall be in writing and signed
by such parties.
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10. Security Interest Absolute. All rights of the Company hereunder,
the grant of a security interest in the Collateral and all obligations of
Xxxxxxxxx hereunder, shall be absolute and unconditional irrespective of (i) any
lack of validity or enforceability of the Note, the Separation Agreement, the
Voting Agreement, any agreement with respect to any of the Secured Obligations
or any other agreement or instrument relating to any of the foregoing, (ii) any
change in time, manner or place of payment of, or in any other term of, all or
any of the Secured Obligations, or any other amendment or waiver of or any
consent to any departure from the Note, the Separation Agreement, the Voting
Agreement, or any other agreement or instrument, (iii) any exchange, release or
nonperfection of any other collateral, or any release or amendment or waiver of
or consent to or departure from any guarantee, for all or any of the Secured
Obligations or (iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Xxxxxxxxx in respect of the Secured
Obligations or in respect of this Agreement.
To the maximum extent permitted by law, Xxxxxxxxx hereby waives any right to
notice of any of the foregoing, any right to consent to any of the foregoing,
any rights of or defenses available to a guarantor or surety, and any right to
require Company to pursue any other remedy in Company's power whatsoever.
11. Company's Fees and Expenses. Xxxxxxxxx shall be obligated to,
upon demand, pay to the Company the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of any experts or
agents which the Company may incur in connection with (i) the administration of
this Agreement, (ii) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Company hereunder or (iv) the failure by
Xxxxxxxxx to perform or observe any of the provisions hereof. In addition,
Xxxxxxxxx shall indemnify and hold the Company harmless from and against any and
all liability incurred by the Company hereunder or in connection herewith,
unless such liability shall be due to the gross negligence or wilful misconduct
of the Company, as the case may be. Any such amounts payable as provided
hereunder or thereunder shall be additional Secured Obligations secured hereby
and subject to Section 20 hereof.
12. Termination. This Agreement shall terminate (a) upon the date on
which the Note shall have been fully and indefeasibly satisfied and discharged
in full, at which time the Company shall reassign and deliver to Xxxxxxxxx, or
to such Person or Persons as Xxxxxxxxx shall designate, against receipt, such of
the Collateral (if any) which was pledged hereunder by Xxxxxxxxx as shall not
have been sold or otherwise still be held by it hereunder, together with
appropriate instruments of reassignment and release, and (b) and with respect to
any particular Pledged Securities when such Pledged Securities are sold in
compliance with Section 5 of the Separation Agreement, the Note and the Voting
Agreement.
13. Notices. All communications and notices hereunder shall be in
writing
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and given as provided in the Separation Agreement.
14. Further Assurances. Xxxxxxxxx agrees to do such further acts and
things, and to execute and deliver such additional conveyances, assignments,
agreements and instruments, as the Company may at any time reasonably request in
connection with the administration and enforcement of this Agreement or with
respect to the Collateral or any part thereof or in order better to assure and
confirm unto the Company its rights and remedies hereunder.
15. Binding Agreement; Assignments. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns (and the
Company may assign its rights hereunder to its successors or any other Person to
which it shall sell, assign or transfer all or a substantial portion of its
assets, and if any securities of a Person other than the Company shall be issued
in respect of the Common Stock, such Person may, with the Company's written
consent, exercise the rights and remedies of the Company under this Agreement.
In the event that any Person shall become a successor to the Company or the
Company shall assign its rights to any Person to which it shall sell, assign or
transfer all or a substantial portion of its assets, references to the "Company"
herein shall be to such successor or other Person), except that Xxxxxxxxx shall
not be permitted to assign this Agreement or any interest herein or in the
Collateral, or any part thereof, or otherwise pledge, encumber or grant any
option with respect to the Collateral, or any part thereof, or any cash or
property held by the Company as Collateral under this Agreement (except as
specifically contemplated by Section 5 of the Separation Agreement).
16. GOVERNING LAW/JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEVADA (EXCEPT
CONFLICTS OF LAWS PRINCIPLES THEREOF), EXCEPT AS REQUIRED BY MANDATORY
PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF
THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEVADA. In addition, each of the parties hereto (a) consents to submit
itself or himself to the non-exclusive personal jurisdiction of any federal
court located in the State of Nevada or any Nevada state court in the event any
dispute arises out of this Agreement or any of the transactions contemplated by
this Agreement and (b) agrees that it or he will not attempt to deny or defeat
such non-exclusive personal jurisdiction by motion or other request for leave
from any such court.
17. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired.
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18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Agreement shall be
effective when a counterpart which bears the signature (facsimile or original)
of Xxxxxxxxx shall have been delivered to the Company.
19. Section Headings. Section headings used herein are for
convenience only and are not to affect the construction of, or be taken into
consideration in interpreting, this Agreement.
20. Obligations. The obligations of Xxxxxxxxx under this Agreement
are non-recourse to him personally other than with respect to the Collateral
(against which recourse may be had) and the Company agrees to look only to the
Collateral pledged under this Agreement for recovery and/or satisfaction of the
Secured Obligations; provided, that nothing contained in this sentence shall be
construed, interpreted or deemed in any fashion to release or impair the Secured
Obligations or the Lien upon the Collateral created by this Agreement or to
preclude the application of the Collateral to the payment or satisfaction of the
Secured Obligations.
21. Survival. All representations, warranties and covenants
contained in this Agreement shall survive the execution, delivery and
performance of this Agreement until the termination of this Agreement pursuant
to Section 12 hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Pledge Agreement as of the day and year first above written.
/s/ Xxxx X. Xxxxxxxxx
____________________________
Xxxx X. Xxxxxxxxx
ELEKTRYON
By: /s/ Xxxxxxx X. Xxxxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
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SCHEDULE I
to Pledge Agreement
Stock Percentage of
Certificate Number of Outstanding
Stock Issuer Class of Stock No(s). Par Value Shares Shares
------------ -------------- ----------- --------- --------- -------------
Elektryon Common Stock 4475 $.001 865,000
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