Exhibit 3.3
ARTICLES OF AMENDMENT
OF THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF TANISYS TECHNOLOGY, INC.
Tanisys Technology, Inc., a corporation duly existing under the laws of the
State of Wyoming, acting pursuant to the approval of its Board of Directors on
August 6, 2001, on a matter not requiring shareholder approval, hereby certifies
as follows:
1. The name of the corporation is: Tanisys Technology, Inc.
2. Pursuant to Article 17-16-602 of the Wyoming Business Corporation Act (the
"Act") and authority contained in the Amended and Restated Articles of
Incorporation, the Board of Directors has determined the preferences,
limitations and relative rights, with the limits set forth in Section 17-16-601
of the Act, of a series of Preferred Stock, par value $1.00 per share,
designated as Series A Preferred Stock, and the text of the amendment
determining the terms of the series of the shares is as follows: Article 4.C. is
hereby included in its entirety as follows:
Section 1. Designation. The distinctive serial designation of said series
shall be "Series A Preferred Stock" (hereinafter called "Series A"). Each share
of Series A shall be identical in all respects with all other shares of Series A
except as to the dates from and after which dividends thereon shall be
cumulative.
Section 2. Number of Shares. The number of shares in Series A shall
initially be 3,000,000, which number may from time to time be increased or
decreased (but not below the number thereof then outstanding), by the Board of
Directors. Shares of Series A that are redeemed, purchased or otherwise acquired
by the Corporation or converted into Common Stock shall be canceled and shall
revert to authorized but unissued shares of Preferred Stock undesignated as to
series.
Section 3. Dividends. The holders of shares of Series A shall be entitled
to receive, but only out of funds legally available therefor, cumulative cash
dividends at the annual rate of $0.0045 per share, payable quarterly on the
first days of April, July, October and January respectively, in each year with
respect to the quarterly dividend period (or portion thereof) ending on the day
preceding such respective dividend payment date, to holders of record on the
respective date, not more than sixty nor less than ten days preceding such
dividend payment date, fixed for such purpose by the Board of Directors in
advance of payment of each particular dividend.
At the sole option of New Century, dividends shall be paid in additional
shares of Series A, at a price of $0.03 per share, provided such price shall be
adjusted from time to time as
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provided in Section 6 below. If the holders of Series A shares elect payment in
additional shares of Series A, such shares shall be delivered in the manner
specified hereinabove relating to the payment of cash dividends.
Dividends on shares of Series A shall be cumulative from the date of
issuance thereof as follows:
(a) if issued prior to the record date for the first dividend on
shares of Series A, from the date of issuance thereof;
(b) if issued during the period commencing immediately after a record
date for a dividend on shares of Series A and ending on the payment date
for such dividend, from such dividend payment date; and
(c) otherwise from the first day of April, July, October and January
preceding the date of issuance of such shares.
So long as any share of Series A remains outstanding, no dividend whatever
shall be paid or declared and no distribution shall be made on any junior stock,
other than a dividend payable solely in junior stock, and no shares of junior
stock shall be purchased, redeemed or otherwise acquired for consideration by
the Corporation, directly or indirectly (other than as a result of a
reclassification of junior stock, or the exchange or conversion of one share of
junior stock, in each case, for or into another share of junior stock, and other
than through the use of the proceeds of a substantially contemporaneous sale of
other shares of junior stock), unless all accrued dividends on all outstanding
shares of Series A for all past quarterly dividend periods shall have been paid
and the full dividend thereon for the then current quarterly dividend period
shall have been paid or declared and set apart for payment. Subject to the
foregoing, and not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may be declared and
paid on any junior stock from time to time out of any funds legally available
therefor, and the shares of Series A shall not be entitled to participate
therein.
Section 4. Liquidation Rights and Preference. In the event of any voluntary
or involuntary liquidation, sale, merger, consolidation, dissolution or winding
up of the affairs of the Corporation ("Liquidation Event"), the holders of
shares of Series A shall be entitled at the election of 50.1% of the holders of
Series A, before any distribution or payment is made to the holders of any
junior stock, to be paid an amount equal to five (5) times the Conversion Price,
(as defined hereinafter), together with accrued dividends to such distribution
or payment date whether or not earned or declared.
If such amount shall have been paid in full to all holders of shares of
Series A, the remaining assets of the Corporation shall be distributed among the
holders of junior stock and the Series A (as if the same was fully converted
into Common Stock immediately prior to such distribution or payment date),
according to their respective rights and preferences and in each case according
to their respective numbers of shares.
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Section 5. Redemption. The Corporation shall have no rights to redeem the
Series A. In the case of a Liquidation Event, the Series A shall be redeemable,
out of funds legally available therefor, solely upon the election of 50.1% of
the holders of Series A, in accordance with the terms of Section 4 above.
Section 6. Conversion Rights. The holders of shares of Series A shall have
the right, at their option, to convert such shares into shares of Common Stock
of the Corporation at any time on and after the Closing Date and subject to the
following terms and conditions:
(a) The shares of Series A shall be convertible at the office of any
transfer agent for the Common Stock or the principal office of the
Corporation and at such other office or offices, if any, as the Board of
Directors may designate, into fully paid and non-assessable shares
(calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Corporation, at the initial conversion ratio of one
share of Series A for 33.334 shares of Common Stock ("Conversion Ratio"),
subject to adjustment from time to time as provided below. The price fixed
for purposes of any such conversion initially shall be $0.03 per share of
Common Stock ("Conversion Price"), subject to adjustment from time to time
as provided below.
(b) In order to convert shares of Series A into Common Stock the
holder thereof shall surrender at the office or offices hereinabove
mentioned the certificate or certificates therefor, duly endorsed or
assigned to the Corporation or in blank, and give written notice to the
Corporation at said office or offices that such holder elects to convert
such shares. Shares of Series A surrendered for conversion during the
period from the close of business on any record date for the payment of a
dividend on the shares of Series A to the opening of business on the date
for payment of such dividend shall be accompanied by a payment of an amount
equal to the dividend payable on such dividend payment date on the shares
of Series A being surrendered for conversion.
Shares of Series A shall be deemed to have been converted immediately
prior to the close of business on the day of the surrender of the
certificates for such shares for conversion in accordance with the
foregoing provisions, and the person or persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such time.
As promptly as practicable on or after the conversion date, the Corporation
shall issue and shall deliver at such office a certificate or certificates
for the number of full shares of Common Stock issuable upon such
conversion, together with payment in lieu of any fraction of a share, as
hereinafter provided, to the person or persons entitled to receive the
same.
(c) No fractional shares of Common Stock shall be issued upon
conversion of shares of Series A, but, instead of any fraction of a share
which would otherwise be issuable, the Corporation shall pay a cash
adjustment in respect of such fraction in an amount equal to the same
fraction times the price per share of $0.03.
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(d) So long as any Series A is issued and outstanding, in the event
the Corporation shall issue any shares of equity securities, including
Common Stock or other shares convertible into Common Stock, without
consideration or for a consideration less than the Conversion Price in
effect on the date of and immediately prior to such issue, then and in each
such event the Conversion Price shall be reduced, concurrently with such
issue to such lower price. In any such event, the Corporation shall issue
the aggregate number of additional shares of Series A to the holders of
Series A, pro rata, within ten (10) days of the issuance of other
securities sold for no consideration or for consideration per share less
than the Conversion Price, equal in number to that determined by a
fraction, the numerator of which shall be the number of shares of Series A
issued and outstanding immediately prior to any such issuance, and the
denominator of which shall be the Conversion Price, as adjusted pursuant to
the foregoing provisions of this subsection (d), less the number of shares
of Series A issued and outstanding immediately prior to any such issuance.
(e) The Conversion Ratio, and the corresponding number of shares of
securities to be received upon conversion of the Series A, shall be
adjusted from time to time under this subsection (e), as follows:
(i) In the event the outstanding shares of Common Stock shall be
subdivided by stock split, stock dividend or otherwise; into a greater
number of shares of Common Stock, the Conversion Price of Series A
then in effect shall concurrently with the effectiveness of such
subdivision, be proportionately decreased. In the event the
outstanding shares of Common Stock shall be combined or consolidated
into a lesser number of shares of Common Stock, the Conversion Price
of Series A then in effect shall, concurrently with the effectiveness
of such combination or consolidation, be proportionately increased.
(ii) In the event the Corporation makes, or fixes a record date
for the determination of holders of Common Stock entitled to receive
any distribution payable in property or in equity securities of the
Corporation other than shares of Common Stock, and other than as
otherwise adjusted for in this subsection (e), then in each such event
the holders of Series A shall receive, at the time of such
distribution, the amount of property or the number of equity
securities of the Corporation that they would have received had their
Series A been converted into Common Stock on the date of such event.
(iii) If the Common Stock shall be changed into the same or a
different number of shares of any other class or classes of stock or
other equity securities or property, whether by capital
reorganization, reclassification or otherwise, then each share of
Series A shall thereafter be convertible into the number of shares of
stock or other equity securities or property to which a holder of the
number of shares of Common Stock deliverable upon conversion of such
shares of Series A shall have been entitled upon such reorganization,
reclassification or other event.
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(iv) In any case in which this subsection (d) shall require that
an adjustment as a result of any event become effective from and after
a record date, the Corporation may elect to defer until after the
occurrence of such event (A) issuing to the holder of any shares of
Series A converted after such record date and before the occurrence of
such event the additional shares of Common Stock issuable upon such
conversion over and above the shares issuable on the basis of the
Conversion Price in effect immediately prior to adjustment and (B)
paying to such holder any amount in cash in lieu of a fractional share
of Common Stock pursuant to subsection (c) above. In lieu of the
shares the issuance of which is deferred pursuant to item (A) above,
the Corporation shall issue or cause one of its transfer agents to
issue due bills or other appropriate evidence of the right to receive
such shares.
(v) The Board of Directors may make such adjustments in the
Conversion Price or Conversion Ratio, in addition to those required by
this subsection (d), as shall be determined by the Board of Directors
to be advisable in order to avoid taxation so far as practicable of
any dividend of stock or stock rights or any event treated as such for
Federal income tax purposes to the recipients. The Board of Directors,
with the consent of a majority the issued and outstanding Series A,
shall have the power to resolve any ambiguity or correct any error in
this subsection (d), and its action in so doing shall be final and
conclusive.
(vi) In the event that any time, as a result of an adjustment
made pursuant to this subsection (e), the holder of any shares of
Series A thereafter surrendered for conversion shall become entitled
to receive any shares of capital stock of the Corporation other than
Common Stock, thereafter the number of such other shares so receivable
upon conversion of such shares of Series A shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Stock contained in this subsection (e).
(f) Whenever the Conversion Price or Conversion Ratio is adjusted as
herein provided:
(i) The Corporation shall compute the adjusted Conversion Price
or Conversion Ratio in accordance with this Section 6 and shall cause
to be prepared a certificate signed by the Corporation's treasurer
setting forth the adjusted Conversion Price or Conversion Ratio and
showing in reasonable detail the fact upon which such adjustment is
based, and such certificate shall forthwith be filed with each
transfer agent for the shares of Series A; and
(ii) A notice stating that the Conversion Price or Conversion
Ratio has been adjusted and setting forth the adjusted Conversion
Price or Conversion Ratio shall, as soon as practicable, be mailed to
the holders of record of outstanding
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shares of Series A.
(g) In case:
(i) The Corporation shall declare a dividend or other
distribution on its Common Stock payable otherwise than in cash out of
retained earnings;
(ii) The Corporation shall authorize the issuance to the holders
of its Common Stock of rights or warrants entitling them to subscribe
for or purchase any shares of capital stock of any class or any other
subscription rights or warrants; or
(iii) Of any reclassification of the capital stock of the
Corporation (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation or merger
to which the Corporation is a party and for which approval of any
stockholders of the Corporation is required, or of the sale, transfer
or other disposition of all or substantially all of the assets of the
Corporation; or
(iv) Of the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation;
then the Corporation shall cause to be filed with each transfer agent for
the shares of Series A and shall cause to be mailed to the holders of
record of the outstanding shares of Series A, at least 20 days (or 10 days
in any case specified in clause (i) or (ii) above) prior to the applicable
record or effective date hereinafter specified, a notice stating (x) the
date as of which the holders of record of Common Stock to be entitled to
such dividend, distribution, rights or warrants are to be determined, or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer, disposition, liquidation, dissolution or winding up is expected
to become effective, and the date as of which it is expected that holders
of record of Common Stock shall be entitled to exchange their shares for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, disposition, liquidation,
dissolution or winding up. Failure to give notice as required by this
subsection (g), or any defect therein, shall not affect the legality or
validity of any such dividend, distribution, right, warrant,
reclassification, consolidation, merger, sale, transfer, disposition,
liquidation, dissolution or winding up, or the vote on any action
authorizing such.
(h) The Corporation shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common
Stock, for the purpose of issuance upon conversion of shares of Series A,
the full number of shares of Common Stock then deliverable upon the
conversion of all shares of Series A then outstanding.
(i) The Corporation will pay any and all taxes that may be payable in
respect
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of the issuance or delivery of shares of Common Stock on conversion of
shares of Series A pursuant thereto. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of shares of Common Stock in a name
other than that in which the shares of Series A so converted were
registered, and no such issuance or delivery shall be made unless and until
the person requesting such issuance has paid to the Corporation the amount
of any such tax or has established to the satisfaction of the Corporation
that such tax has been paid.
(j) The certificate of any independent firm of public accountants of
recognized standing selected by the Board of Directors shall be presumptive
evidence of the correctness of any computation made under this Section 6.
Section 7. Voting Rights. The holders of shares of Series A shall be
entitled to one vote for each share of Common Stock into which the shares of
Series A are convertible and, except as hereinafter provided, shall vote
together with the holders of shares of Common Stock (and of any other class or
series which may similarly be entitled to vote with the holders of shares of
Common Stock) as a single class upon all matters upon which stockholders are
entitled to vote, provided if the Corporation shall be in default hereunder or
under any terms of that certain Series A Preferred Stock Purchase Agreement, and
more than $500,000 of the Series A is then outstanding (determined by reference
to the Conversion Price then in effect), the Conversion Ratio of the Series A
shall in each such instance be adjusted to provide the holders of Series A the
number of votes equal to that that number of shares of Common Stock required to
vote 66 2/3% of the issued and outstanding Common Stock then entitled to vote on
all matters to come before the stockholders of the Corporation.
So long as the Series A and any other class or series of stock of the
Corporation ranking on a parity with Series A as to payment of dividends (any
such class or series being herein referred to as "parity stock") shall be issued
and outstanding, and subject to the requirements of Section 14(f) of the
Securities Exchange Act of 1934, as amended, to the extent applicable, and other
applicable law, the number of directors then constituting the Board of Directors
shall be increased (at the election of the Series A stockholders as hereinafter
provided) in order to effect not less than fifty and one/tenth percent (50.1%)
representation on the Corporation's Board of Directors and the holders of shares
of Series A, voting separately as a class, shall be entitled to elect such
additional directors at any annual meeting of stockholders or any special
meeting of the holders of shares of Series A as hereinafter provided. At any
time after such voting power shall have been so vested in the holders of shares
of Series A and parity stock, the Secretary of the Corporation may, and upon the
written request of any holder of shares of Series A (addressed to the Secretary
at the principal office of the Corporation) shall, call a special meeting of the
holders of the shares of Series A and parity stock for the election of the two
or more directors to be elected by them as herein provided, such call to be made
by notice similar to that provided in the by-laws for a special meeting of the
stockholders or as required by law. If any such special meeting required to be
called as above provided shall not be called by the Secretary within 20 days
after receipt of any such request, then any holder of shares of Series A may
call such meeting, upon the notice above provided, and for that purpose shall
have access to the stock books of the Corporation. The directors elected at any
such special meeting shall hold office until
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the next annual meeting of the stockholders if such office shall not have
previously terminated as above provided. In case any vacancy shall occur among
the directors elected by the holders of the shares of Series A and parity stock,
a successor shall be elected by the Board of Directors to serve until the next
annual meeting of the stockholders upon the nomination of the then remaining
director elected by the holders of the shares of Series A and parity stock or
the successor of such remaining director. If the holders of shares of Series A
become entitled under the foregoing provisions to elect or participate in the
election of two or more directors such entitlement shall not affect the right of
such holders to vote as stated in the first paragraph of this Section 7,
including the right to vote in the election of the remaining directors.
So long as any shares of Series A are outstanding, in addition to any other
vote or consent of stockholders required by law or by the certificate of
incorporation, the consent of the holders of at least 66 2/3 % of the shares of
Series A, acting as a single class regardless of series, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
the purpose, shall be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the provisions of
the certificate of incorporation, or of the by-laws, of the Corporation,
which would alter or change the powers, preferences or special rights of
the holders of the Series A and of all such other series of the Preferred
Stock so as to affect them adversely; provided, however, that the amendment
of the provisions of the certificate of incorporation so as to authorize or
create, or to increase the authorized amount of Series A, and any junior
stock or any shares of any class or series ranking on a parity with the
shares of Series A and all such other series of the Preferred Stock shall
not be deemed to affect adversely the powers, preferences or special tights
of the holders of the shares of Series A and all such other series of the
Preferred Stock and provided, further, that if any such amendment,
alteration or repeal would affect adversely any powers, preferences or
special rights of the holders of the shares of Series A which are not
enjoyed by some or all of the holders of other series otherwise entitled to
vote in accordance with this paragraph, the consent of the holders of at
least 66 2/3 % of the shares of Series A and of all other series similarly
affected, similarly given, shall be required in lieu of the consent of the
holders of at least 66 2/3 % of the shares of Series A and of all other
series of the Preferred Stock otherwise entitled to vote in accordance with
this paragraph;
(ii) Any amendment, alteration or repeal of any of the provisions of
the certificate of the incorporation, or of the by-laws of the Corporation,
which would alter or change the size or composition of the Board of
Directors of the Corporation;
(iii) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security convertible
into shares of any class ranking prior to the shares of Series A and all
such other series of the
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Preferred Stock in the distribution of assets on any liquidation,
dissolution, or winding up of the Corporation or in the payment of
dividends;
(iv) The merger or consolidation of the Corporation with or into any
other corporation, unless the surviving or resulting corporation will
thereafter have no class or series of shares and no other securities either
authorized or outstanding ranking prior to the Series A in the distribution
of assets on liquidation, dissolution or winding up or in the payment of
dividends, except the same number of shares and the same amount of other
securities with the same rights and preferences as the shares and
securities of the Corporation respectively authorized and outstanding
immediately preceding such merger or consolidation, and each holder of
shares of Series A immediately preceding such merger or consolidation shall
receive the same number of shares, with the same rights and preferences, of
the surviving or resulting corporation;
(v) Any increase in the size of the pool of Common Stock or common
stock equivalents, including options, or warrants or other rights to
subscribe, available for award to employees, consultants or other third
parties; or
(vi) A substantial change or modification of the major business lines
or plans of the Corporation.
So long as any shares of Series A are outstanding, in addition to any other
vote or consent of stockholders required by law or by the certificate of
incorporation, the consent of the holders of at least a majority of the shares
of Series A and of all other series of the Preferred Stock similarly entitled to
vote upon the matters specified in this paragraph at the time outstanding,
acting as a single class regardless of series, given in person or by proxy,
either in writing without a meeting or by vote at any meeting called for the
purpose, shall be necessary for effecting or validating any increase or decrease
(but not below the number of shares thereof then outstanding) in the authorized
number of shares of Preferred Stock, or the authorization or creation of, or the
increase in the authorized number of, any shares of any class or series or any
security convertible into shares of any class or series ranking on a parity with
the Preferred Stock in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation or in the payment of dividends.
Section 8. Preemptive Rights. If the Corporation shall issue Common Stock
or other equity securities ("Equity Securities"), each holder of Series A shall
be entitled to purchase the portion of such Common Stock or Equity Securities to
be issued necessary in order that the aggregate shares of Common Stock and
Equity Securities held by such holder constitute the same percentage of all
Common Stock (assuming the conversion, exercise or exchange of all Equity
Securities) after the issuance of such Common Stock or Equity Securities as
before the issuance thereof; provided, however, that such preemptive right shall
not apply to (a) issuances of Common Stock or Equity Securities upon the
conversion, exercise or exchange of Equity Securities to which the preemptive
right was applicable; (b) issuances of Common Stock or Equity Securities in
connection with the preemptive rights granted hereunder; (c) issuances of
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shares pursuant to that certain Series A Preferred Stock Purchase Agreement, or
upon conversion of the Series A; (d) issuances of Common Stock upon the exercise
of options issued under the Corporation's employee stock option plan(s); (e)
issuances of Common Stock upon the exercise of warrants issued by the
Corporation; or (f) other issuances of Common Stock or Equity Securities
authorized by the Board of Directors of the Corporation. The price of securities
which each holder becomes entitled to purchase by reason hereof shall be the
same price at which such securities are offered to others. A holder may exercise
its right under this Section 8 to purchase Equity Securities by paying the
purchase price therefor at the principal office of the Corporation within ten
(10) days after receipt of notice from the Corporation (which notice by the
Corporation shall be given at least fifteen (15) days before the issuance of the
Equity Securities) stating the number of amount of Equity Securities it intends
to issue, the price and characteristics thereof and the number of shares that
such holder is entitled to purchase. The holder shall pay such purchase price in
cash or by check or wire transfer; provided, however, that if the Corporation is
indebted to such holder, the holder shall be entitled, at the holder's sole
option, to credit against the purchase price all or any portion of the
Corporation's indebtedness to such holder which is then due (accrued but unpaid
dividends on the Series A shall not be deemed to be indebtedness of purposes of
such credit). A holder's preemptive rights hereunder shall be deemed to
exercised immediately prior to the close of business on the day of payment of
the purchase price in accordance with the foregoing provisions, and at such time
such holder shall be treated for all purposes as the record holder of the Equity
Securities. As promptly as practicable (and in any event within ten (10) days)
on or after the Purchase Date, the Corporation shall issue and deliver at its
principal office a certificate or certificates for the number of full shares of
Common Stock or the number of full shares or amount, whichever is applicable, of
Equity Securities together with cash for any fraction of a share or portion of
an Equity Security at the Purchase Price to which the holder is entitled
hereunder.
Section 9. Definitions. As used herein with respect to Series A, the
following terms shall have the following meanings:
(a) The term "junior stock" shall mean the Common Stock and any other
class or series of stock of the Corporation hereafter authorized over which
Series A has preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding up of the
Corporation.
(b) The term "accrued dividends" with respect to any share of any
class or series, shall mean an amount computed at the annual dividend rate
for the class or series of which the particular share is a part, from the
date on which dividends on such share became cumulative to and including
the date to which such dividends are to be accrued, less the aggregate
amount of all dividends theretofore paid thereon.
(c) The term "business day" shall mean each Monday, Tuesday,
Wednesday, Thursday or Friday on which banking institutions in San Antonio,
Texas are not authorized or obligated by law or executive order to close.
(d) The term "New Century" shall mean New Century Equity Holdings
Corp.,
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a Delaware corporation, or its lawful successors or assigns.
Section 10. Other Rights. The shares of Series A shall not have any powers,
preferences or relative, participating, optional or other special rights, or
qualifications, limitations or restrictions thereof, other than as set forth
herein.
IN WITNESS WHEREOF, Tanisys Technology, Inc. has caused this certificate to
be signed by its President, this 6th day of August, 2001.
TANISYS TECHNOLOGY, INC.
A Wyoming Corporation
By: /s/Charles T. Comiso
Its President
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