EXHIBIT 10.10
[FILED
in the Office of the
Secretary of State of Texas
MAY 31 1996
Corporations Section]
ARTICLES OF MERGER
OF
DARKHORSE SYSTEMS, INC.
(a Texas corporation)
WITH AND INTO
TANISYS ACQUISITION CORP. II
(a Delaware corporation)
________________________________________________________________________________
________________________________________________________________________________
Pursuant to the provisions of Article 5.04 of the Texas Business
Corporation Act (the "Texas 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. II, a Delaware corporation ("Tanisys
Acquisition II"), and DARKHORSE SYSTEMS, INC., a Texas corporation
("DarkHorse"), in accordance with the provisions of Article 5.01 of the Texas
Act. Tanisys Acquisition II and DarkHorse are sometimes referred to herein
as the "Constituent Corporations."
RECITALS
Tanisys Acquisition II 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 II Common
Stock"), of which no shares are held in treasury and 10,000 shares of Tanisys
Acquisition II Common Stock are issued and outstanding.
DarkHorse is a corporation validly existing under the laws of the State of
Texas with authorized capital consisting of 100,000,000 shares of common stock,
no par value per share (the "DarkHorse Common Stock"), of which no shares are
held in the treasury and 1,200,000 shares are issued and outstanding.
Tanisys Technology, Inc., a Wyoming corporation and holder of all of the
issued and outstanding shares of Tanisys Acquisition II Common Stock
("Tanisys"), and DarkHorse, among others, have entered into an Agreement and
Plan of Merger, dated as of April 9, 1996 (the "Agreement"), which contemplates
the merger of DarkHorse with and into Tanisys Acquisition II (the "Merger"),
with Tanisys Acquisition II becoming the surviving corporation in accordance
with the Agreement and these Articles of Merger.
The respective Boards of Directors of Tanisys Acquisition II and DarkHorse
deem it advisable and in the best interests of each such corporation and their
respective shareholders that
DarkHorse be merged with and into Tanisys Acquisition II 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),
DarkHorse shall be merged with and into Tanisys Acquisition II, which as the
surviving corporation is sometimes referred to herein as the "Surviving
Corporation." The separate existence and corporate organization of DarkHorse
shall cease upon the Effective Date of the Merger, and thereafter Tanisys
Acquisition II shall continue as the Surviving Corporation under the laws of the
State of Delaware under the name "Tanisys Acquisition Corp. II, d/b/a DarkHorse
Systems, Inc." The Merger shall be pursuant to the provisions of and with the
effect provided in the Texas Act and the Delaware Corporation Act (the "Delaware
Act").
ARTICLE 2.
Articles of Incorporation and Bylaws
2.1. On the Effective Date of the Merger, the Articles of Incorporation of
Tanisys Acquisition II, 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
II, 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 duly
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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 II Common Stock issued and outstanding
immediately prior to the Effective Date of the Merger (other than Tanisys
Acquisition II Appraisal Shares (as hereinafter defined), all of which shall be
cancelled) shall continue to remain outstanding and unchanged. "Tanisys
Acquisition II Appraisal Shares" are those shares of Tanisys Acquisition II
Common Stock as to which shareholders of Tanisys Acquisition II 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 DarkHorse Common Stock issued and
outstanding immediately prior to the Effective Date of the Merger (other than
DarkHorse Appraisal Shares (as hereinafter defined), all of which shares shall
be cancelled), not to exceed 1,200,000 shares of DarkHorse 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 DarkHorse 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 DarkHorse Common Stock resulting in a reduction in the per-
share Exchange Ratio. In the event that DarkHorse has less than 1,200,000
shares of DarkHorse Common Stock outstanding on the Effective Date of the
Merger, the Exchange Ratio shall be proportionally increased. Each share of
DarkHorse Common Stock held in the treasury of DarkHorse or by a wholly-owned
subsidiary of DarkHorse 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 1,200,000 shares of Tanisys
Common Stock exchanged for DarkHorse 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 DarkHorse who exercise dissenters' rights in
connection with the Merger based upon such shareholders' ownership of DarkHorse
Common Stock outstanding on the Effective Date of the Merger. The Exchange
Ratio shall be subject to appropriate adjustment in
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the event of a stock split, stock dividend or recapitalization subsequent to
the date of the Agreement applicable to shares of DarkHorse Common Stock or
Tanisys Common Stock held of record on or before the Effective Date of the
Merger. "DarkHorse Appraisal Shares" are those shares of DarkHorse 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 DarkHorse 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 DarkHorse Appraisal Shares) a certificate
or certificates representing the number of whole shares of Tanisys Common Stock
into which the shares of DarkHorse 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 DarkHorse 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
DarkHorse 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 DarkHorse Common Stock. Holders of
unsurrendered certificates for shares of DarkHorse Common Stock shall not be
entitled to vote until such unsurrendered certificates for shares of DarkHorse
Common Stock are exchanged pursuant to this Section 4.2. Upon surrender and
exchange of such outstanding certificates of DarkHorse 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 DarkHorse 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 event of a stock split, stock dividend or recapitalization
applicable to shares of Tanisys Common Stock held
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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 DarkHorse 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
DarkHorse 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 II 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 DarkHorse 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. DarkHorse shall give Tanisys Acquisition II
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 II 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 II as the Surviving Corporation
5.1. On the Effective Date of the Merger, the separate existence of
DarkHorse shall cease for all purposes, and DarkHorse shall be merged with and
into Tanisys Acquisition II, 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 DarkHorse, the last acting officers and directors of DarkHorse, 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
Texas Act and Delaware 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 II and
DarkHorse, 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 II and DarkHorse, no such amendment,
modification or supplement shall reduce the amount or change the form of the
consideration to be paid to the shareholders of DarkHorse 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
- - ----------- -------------- ----------- -------- -------
Tanisys Acquisition
Corp. II Common Stock 10,000 10,000 -0-
DarkHorse
Systems, Inc. Common Stock 1,200,000 1,200,000 -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 II, DarkHorse and Tanisys are incorporated and by their
respective constituent documents.
TANISYS ACQUISITION CORP. II
a Delaware corporation
ATTEST:
By: /s/ KEITH D. THATCHER
--------------------------------
/s/ LYNNE REILLY Name: Keith D. Thatcher
- - ---------------------------- ------------------------------
Secretary Title: Vice Preident and CFO
-----------------------------
DARKHORSE SYSTEMS, INC.
a Texas corporation
ATTEST:
By: /s/ GARY W. PANKONIEN
--------------------------------
/s/ ARCHER LAWRENCE Name: Gary W. Pankonien
- - ---------------------------- ------------------------------
Secretary Title: Chairman and CEO
-----------------------------
TANISYS TECHNOLOGY, INC.
a Wyoming corporation
ATTEST:
By: /s/ KEITH D. THATCHER
--------------------------------
/s/ LYNNE REILLY Name: Keith D. Thatcher
- - ---------------------------- ------------------------------
Assistant Secretary Title: Vice President and CFO
-----------------------------
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