Exhibit 10.5
[STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 05/31/1996
960157937 - 2603083]
ARTICLES OF MERGER
OF
1ST TECH CORPORATION
(a Texas corporation)
WITH AND INTO
TANISYS ACQUISITION CORP.
(a Delaware corporation)
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
Pursuant to the provisions of Article 262 of the Delaware Corporation Act
(the "Delaware Act"), the undersigned domestic corporation and foreign
corporation adopt the following Articles of Merger ("Articles of Merger"), this
31st day of May, 1996, for the purpose of effecting a merger between TANISYS
ACQUISITION CORP., a Delaware corporation ("Tanisys Acquisition"), and 1ST TECH
CORPORATION, a Texas corporation ("Tech"), in accordance with the provisions of
Article 251 of the Delaware Act. Tanisys Acquisition and Tech are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
Tanisys Acquisition is a corporation duly organized and existing under the
laws of the State of Delaware with authorized capital of 10,000 shares of common
stock, par value $.01 per share (the "Tanisys Acquisition Common Stock"), of
which no shares are held in treasury and 10,000 shares of Tanisys Acquisition
Common Stock are issued and outstanding.
Tech is a corporation validly existing under the laws of the State of Texas
with authorized capital consisting of 10,000,000 shares of common stock, no par
value per share (the "Tech Common Stock"), of which no shares are held in the
treasury and 2,950,000 shares are issued and outstanding.
Tanisys Technology, Inc., a Wyoming corporation and holder of all of the
issued and outstanding shares of Tanisys Acquisition Common Stock ("Tanisys"),
and Tech, among others, have entered into an Agreement and Plan of Merger, dated
as of April 9, 1996 (the "Agreement"), which contemplates the merger of Tech
with and into Tanisys Acquisition (the "Merger"), with Tanisys Acquisition
becoming the surviving corporation in accordance with the Agreement and these
Articles of Merger.
The respective Boards of Directors of Tanisys Acquisition and Tech deem it
advisable and in the best interests of each such corporation and their
respective shareholders that Tech
be merged with and into Tanisys Acquisition as provided herein and in the
Agreement, and they have accordingly adopted resolutions approving the
Agreement and these Articles of Merger, and the Agreement and these Articles
of Merger have been approved by the required vote of the shareholders of each
Constituent Corporation.
Therefore, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto covenant and agree to the
following Plan of Merger:
ARTICLE 1.
The Merger
On the Effective Date of the Merger (as defined in Article 6 hereof), Tech
shall be merged with and into Tanisys Acquisition, which as the surviving
corporation is sometimes referred to herein as the "Surviving Corporation." The
separate existence and corporate organization of Tech shall cease upon the
Effective Date of the Merger, and thereafter Tanisys Acquisition shall continue
as the Surviving Corporation under the laws of the State of Delaware under the
name "Tanisys Acquisition Corp." The Merger shall be pursuant to the provisions
of and with the effect provided in the Delaware Act and the Texas Business
Corporation Act (the "Texas Act").
ARTICLE 2.
Articles of Incorporation and Bylaws
2.1. On the Effective Date of the Merger, the Articles of Incorporation of
Tanisys Acquisition, as in effect immediately prior to the Effective Date of the
Merger, shall be the Articles of Incorporation of the Surviving Corporation,
until duly amended in accordance with law and such Articles of Incorporation.
2.2. On the Effective Date of the Merger, the Bylaws of Tanisys
Acquisition, as in effect immediately prior to the Effective Date of the Merger,
shall be the Bylaws of the Surviving Corporation, until the same shall
thereafter be altered, amended or repealed in accordance with law, the Articles
of Incorporation of the Surviving Corporation and such Bylaws.
ARTICLE 3.
Directors and Officers
3.1. The number of directors comprising the Board of Directors of the
Surviving Corporation shall be one (1), and such director, who shall serve until
his successor has been
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duly elected and qualified or until his resignation, death or removal, in
accordance with law, the Articles of Incorporation and the Bylaws of the
Corporation, shall be Mark C. Holliday.
3.2. The officers of the Surviving Corporation after the Effective Date of
the Merger, who shall serve in the capacity listed opposite their respective
names until their successors have been duly elected and qualified or until their
resignation, death or removal, in accordance with law, the Articles of
Incorporation and Bylaws of the Surviving Corporation, shall be as follows:
Mark C. Holliday President
Keith D. Thatcher Vice President, Chief Financial Officer
and Corporate Treasurer
Lynne Reilly Corporate Secretary
ARTICLE 4.
Manner and Basis of Converting Shares
4.1. On the Effective Date of the Merger, subject to Section 4.7 hereof,
each share of Tanisys Acquisition Common Stock issued and outstanding
immediately prior to the Effective Date of the Merger (other than Tanisys
Acquisition Appraisal Shares (as hereinafter defined), all of which shall be
cancelled) shall continue to remain outstanding and unchanged. "Tanisys
Acquisition Appraisal Shares" are those shares of Tanisys Acquisition Common
Stock as to which shareholders of Tanisys Acquisition have properly exercised
and perfected their right to dissent and receive the fair value thereof in
accordance with Article 262 of the Delaware Act. Also on the Effective Date of
the Merger, subject to Sections 4.3 and 4.7 hereof and adjustment as provided
herein, each share of Tech Common Stock issued and outstanding immediately prior
to the Effective Date of the Merger (other than Tech Appraisal Shares (as
hereinafter defined), all of which shares shall be cancelled), not to exceed
2,950,000 shares of Tech Common Stock in the aggregate, shall, by virtue of the
Merger and without any action on the part of the holder thereof, thereupon be
converted into and become, in exchange for each share of Tech Common Stock, one
(1) share (the "Exchange Ratio") of Tanisys common stock, no par value per share
(the "Tanisys Common Stock"), with any excess shares of Tech Common Stock
resulting in a reduction in the per-share Exchange Ratio. In the event that
Tech has less than 2,950,000 shares of Tech Common Stock outstanding on the
Effective Date of the Merger, the Exchange Ratio shall be proportionally
increased. Each share of Tech Common Stock held in the treasury of Tech or by a
wholly-owned subsidiary of Tech shall be cancelled as of the Effective Date of
the Merger, and no portion of the Merger Consideration (as hereinafter defined)
shall be payable with respect thereto. As used in these Articles of Merger,
"Merger Consideration" shall mean the aggregate of 2,950,000 shares of Tanisys
Common Stock exchanged for Tech Common Stock in the Merger at the Exchange
Ratio. The Merger Consideration shall be reduced by the amount otherwise
payable or issuable to holders of Tech who exercise dissenters' rights in
connection with the Merger based upon such shareholders' ownership of Tech
Common
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Stock outstanding on the Effective Date of the Merger. The Exchange Ratio
shall be subject to appropriate adjustment in the event of a stock split,
stock dividend or recapitalization subsequent to the date of the Agreement
applicable to shares of Tech Common Stock or Tanisys Common Stock held of
record on or before the Effective Date of the Merger. "Tech Appraisal
Shares" are those shares of Tech Common Stock as to which shareholders have
properly exercised and perfected their right to dissent and to receive the
fair value thereof in accordance with Articles 5.11, 5.12 and 5.13 of the
Texas Act.
4.2. After the Effective Date of the Merger, each holder of record of an
outstanding certificate or certificates representing shares of Tech Common
Stock shall surrender such certificate or certificates to Tanisys or to such
agent or agents as shall be appointed by Tanisys (the "Exchange Agent") and
shall be entitled to receive in exchange therefor (except to the extent such
certificate or certificates represent Tech Appraisal Shares) a certificate or
certificates representing the number of whole shares of Tanisys Common Stock
into which the shares of Tech Common Stock theretofore represented by the
certificate or certificates so surrendered shall have been converted,
together with a check representing the cash adjustments for fractional
shares, if any. Except as otherwise provided herein, each share of Tech
Common Stock issued and outstanding immediately prior to the Effective Date
of the Merger shall on and after the Effective Date of the Merger be deemed
for all corporate purposes to evidence ownership of the number of shares of
Tanisys Common Stock into which such shares have been converted. Until
certificates representing shares of Tech Common Stock shall be surrendered
and exchanged for certificates representing shares of Tanisys Common Stock,
no dividend or other distributions, if any, payable to holders of record of
Tanisys Common Stock as of any date subsequent to the Effective Date of the
Merger shall be paid to the holders of such outstanding certificates of Tech
Common Stock. Holders of unsurrendered certificates for shares of Tech
Common Stock shall not be entitled to vote until such unsurrendered
certificates for shares of Tech Common Stock are exchanged pursuant to this
Section 4.2. Upon surrender and exchange of such outstanding certificates of
Tech Common Stock and subject to the effect, if any, of applicable law, there
shall be paid to the record holders of the certificates issued in exchange
therefor, the amount, without interest thereon, of dividends and other
distributions, if any, which has become payable after the Effective Date of
the Merger with respect to the number of whole shares of Tanisys Common Stock
represented thereby. Immediately prior to the Effective Date of the Merger,
all outstanding stock options or rights to purchase Tech Common Stock, if
any, shall be surrendered by the respective holders thereof and shall
terminate and be cancelled and shall have no further force and effect
whatsoever.
4.3. Tanisys shall not be required to issue, and no certificates shall be
issued, for a fraction of a share of Tanisys Common Stock to any shareholder of
Tanisys in respect of fractional interests, but in lieu thereof each such holder
of shares of Tanisys Common Stock who would otherwise have been entitled to a
fraction of a share of Tanisys Common Stock, upon compliance with Section 4.2
hereof, shall be paid cash equal to such fraction multiplied by the average of
the per-share closing prices of Tanisys Common Stock on the Vancouver Stock
Exchange for the twenty (20) trading days immediately preceding the date that is
ten (10) days prior to the Effective Date of the Merger, subject to appropriate
adjustment in the
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event of a stock split, stock dividend or recapitalization applicable to
shares of Tanisys Common Stock held of record on or before the Effective Date
of the Merger to the extent not reflected in such sales prices.
4.4. If any certificate evidencing shares of Tanisys Common Stock is to be
issued in a name other than that in which the Tech certificate surrendered in
exchange therefor is registered, it shall be a condition of the issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange pay to
Tanisys or the Exchange Agent any transfer or other taxes required by reason of
the issuance of a certificate for shares of Tanisys Common Stock in any name
other than that of the registered holder of the certificate surrendered or
establish to the satisfaction of Tanisys or the Exchange Agent that such tax has
been paid or is not payable.
4.5. Tanisys may, without notice to any person, terminate all exchange
agencies after thirty (30) days following the Effective Date of the Merger, and
thereafter all exchanges, payments and notices provided for in these Articles of
Merger as being made to or by the Exchange Agent shall be made to or by Tanisys
or its transfer agent.
4.6. The holder of a certificate or certificates representing shares of
Tech Common Stock issued and outstanding immediately prior to the Effective Date
of the Merger shall have no rights with respect to such shares other than to
exercise and perfect their right to dissent to the Merger and to receive the
fair value of such shares in the manner provided by Articles 5.11, 5.12 and 5.13
of the Texas Act or surrender such certificate or certificates pursuant to
Section 4.2 hereof. The holder of a certificate or certificates representing
shares of the Tanisys Acquisition Common Stock issued and outstanding prior to
the Effective Date of the Merger shall have no rights with respect to such
shares other than to exercise and perfect their right to dissent to the Merger
and to receive the fair value of such shares in the manner provided by Article
262 of the Delaware Act.
4.7. If the holder of any shares of Tech Common Stock issued and
outstanding immediately prior to the Effective Date of the Merger shall become
entitled to receive payment for such shares in accordance with the applicable
provisions of Articles 5.11, 5.12 and 5.13 of the Texas Act, then such payment
shall be in lieu of the conversion provided in Section 4.1 hereof and shall be
made by the Surviving Corporation. Tech shall give Tanisys Acquisition and
Tanisys prompt notice upon receipt of any written objections to the Merger or
claims of appraisal rights and shall not without prior written consent of
Tanisys Acquisition and Tanisys make any payment with respect to, or settle or
offer to settle, any such objection or claim. If the holder of any shares of
Tanisys Common Stock issued and outstanding immediately prior to the Effective
Date of the Merger shall become entitled to receive payment for such shares in
accordance with the applicable provisions of Article 262 of the Delaware Act,
then such payment shall be made by the Surviving Corporation.
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ARTICLE 5.
Rights and Duties of Tanisys Acquisition as the Surviving Corporation
5.1. On the Effective Date of the Merger, the separate existence of Tech
shall cease for all purposes, and Tech shall be merged with and into Tanisys
Acquisition, which, as the Surviving Corporation, shall thereupon and thereafter
possess all of the rights, privileges, immunities, powers and franchises of a
public as well as of a private nature, and shall be subject to all the
restrictions, liabilities, obligations, disabilities and duties of each of the
Constituent Corporations so merged; and all and singular, the rights,
privileges, immunities, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed and all debts due to
any of the Constituent Corporations on whatever account, including stock
subscriptions and all other choses in action, and all and every other interest
of or belonging to or due to each of such Constituent Corporations shall be
taken and deemed to be transferred to and vested in the Surviving Corporation
without further act or deed. The title to any real estate vested by deed or
otherwise, in either of the Constituent Corporations, shall not revert or be in
any way impaired by reason of the Merger.
5.2. On the Effective Date of the Merger, the Surviving Corporation shall
also be responsible and liable and subject to all restrictions, liabilities,
obligations, disabilities and duties of each Constituent Corporation; and any
claim existing or action or proceeding pending by or against any of the
Constituent Corporations may be prosecuted as if the Merger had not taken place
or the Surviving Corporation had been substituted in its place. Neither the
rights of creditors nor any liens upon the property of any of the Constituent
Corporations shall be impaired by the Merger, and such rights and liens shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if the Merger had not taken place. If at any time the Surviving
Corporation shall consider or be advised that any further assignment or
assurances in law or any things are necessary or desirable to vest in the
Surviving Corporation, according to the terms hereof, the title of any property
or rights of Tech, the last acting officers and directors of Tech, as the case
may be, or the corresponding officers and directors of the Surviving Corporation
shall and will execute and make all such proper assignments and assurances and
do all things necessary or proper to vest title in such property or rights in
the Surviving Corporation, and otherwise to carry out the purposes of the
Agreement and these Articles of Merger.
ARTICLE 6.
Effective Date
As used in these Articles of Merger, the term "Effective Date of the
Merger" shall mean the latter of the issuance of a Certificate of Merger by the
Secretary of State of the State of Texas or the issuance of a Certificate of
Merger by the Secretary of State of the State of Delaware in accordance with the
Delaware Act and Texas Act, respectively.
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ARTICLE 7.
Counterparts
These Articles of Merger may be executed in any number of counterparts,
each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same instrument.
ARTICLE 8.
Amendment
Subject to applicable law, these Articles of Merger may be amended,
modified or supplemented only by written agreement of Tanisys Acquisition and
Tech, duly authorized by each of their respective Boards of Directors, at any
time prior to the Effective Date of the Merger; provided, however, that, after
the adoption of the Agreement and these Articles of Merger by the shareholders
of Tanisys Acquisition and Tech, no such amendment, modification or supplement
shall reduce the amount or change the form of the consideration to be paid to
the shareholders of Tech in accordance with Article 4 hereof.
ARTICLE 9.
Voting
The common stock of each Constituent Corporation is the only class of
shares entitled to vote on the proposed Merger. As to each Constituent
Corporation, the approval of whose shareholders is required, the designation and
total number of shares outstanding and entitled to vote for or against the
Merger, and the number of shares of each Constituent Corporation voted for or
against the Merger, respectively, are as follows:
Number of Shares
Number of ---------------------
Name of Designation of Common Total Total
Constituent Class Entitled Shares Out- Voted Voted
Corporation to Vote standing For Against
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Tanisys Acquisition
Corp. Common Stock 10,000 10,000 -0-
1st Tech
Corporation Common Stock 2,950,000 2,950,000 -0-
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ARTICLE 10.
Authorization of Merger
The Agreement and these Articles of Merger and the performance of their
terms were duly authorized by all action required by the laws under which each
of Tanisys Acquisition, Tech and Tanisys are incorporated and by their
respective constituent documents.
TANISYS ACQUISITION CORP.
a Delaware corporation
ATTEST:
By: /s/ KEITH D. THATCHER
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/s/ LYNNE A. REILLY Name: Keith D. Thatcher
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Secretary Title: Vice Preident and CFO
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DARKHORSE SYSTEMS, INC.
a Texas corporation
ATTEST:
By: /s/ GARY W. PANKONIEN
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/s/ DONALD R. TURNER Name: Gary W. Pankonien
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Secretary Title: Chairman and CEO
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TANISYS TECHNOLOGY, INC.
a Wyoming corporation
ATTEST:
By: /s/ KEITH D. THATCHER
-------------------------------
/s/ LYNNE A. REILLY Name: Keith D. Thatcher
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Assistant Secretary Title: Vice President and CFO
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