Exhibit 10.4
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 amends that certain Agreement and Plan of Merger dated
April 9, 1996 (the "Agreement"), by and among Tanisys Technology, Inc.
("Tanisys"), Tanisys Acquisition Corp. ("Tanisys Acquisition"), 1st Tech
Corporation ("Tech") and Xxxx X. Xxxxxxxxx (the "Owner"), as follows:
1. Section 1.2, CONVERSION OF SHARES, is hereby amended in its entirety
to read as follows:
"Section 1.2 CONVERSION OF SHARES. Upon the latter of the
issuance of a Certificate of Merger by the Secretary of State of the
State of Delaware or the issuance of a Certificate of Merger by the
Secretary of State of the State of Texas (the "Effective Date"), the
issued and outstanding shares of common stock, no par value per share,
of Tech (the "Tech Common Stock"), subject to the fulfillment of the
conditions precedent set forth under Article 6 herein, and the
applicable statutory provisions with respect to appraisal rights, any
applicable withholding requirements and adjustment as herein provided,
shall be converted into and become, and there shall be paid and
issued, in exchange for the Tech Common Stock an aggregate of
2,950,000 shares of Tanisys common stock, no par value per share (the
"Tanisys Common Stock"), such that each share of Tech Common Stock
outstanding on the Effective Date, not to exceed 2,950,000 shares of
Tech Common Stock in the aggregate, is exchanged for one (1) share
(the "Exchange Ratio") of Tanisys Common Stock, with any excess shares
of Tech Common Stock resulting in a reduction in the per-share
Exchange Ratio. As used in this Agreement, "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.
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 and no portion of the Merger Consideration shall be payable with
respect thereto. The Merger Consideration shall be reduced by the
amount otherwise payable or issuable to holders of Tech who exercise
dissenters' rights, if any, in connection with the Merger based upon
such shareholders' ownership of Tech Common Stock outstanding on the
Effective Date. 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 this Agreement applicable
to shares of Tech Common Stock or Tanisys Common Stock held of record
on or before the Effective Date."
2. Section 2.3, CAPITALIZATION, is hereby amended in its entirety to read
as follows:
"Section 2.3 CAPITALIZATION. The authorized capital stock of
Tech consists of 10,000,000 shares of Tech Common Stock, no par value,
of which, as of the date hereof, 1,650,000 shares of Tech Common Stock
are validly issued and outstanding,
fully paid and nonassessable, and upon the Effective Date, there will
be no more than 2,950,000 shares of Tech Common Stock validly issued
and outstanding, fully paid and nonassessable. As of the date of this
Agreement, there are no shares of Tech Common Stock held in the treasury
of Tech and there are no other shares of the capital stock of Tech. As of
the date hereof, except as disclosed in Tech's Disclosure Schedule, there
are no outstanding options, warrants, rights or other commitments to issue
or sell any shares of capital stock or any securities or obligations
convertible into or exchangeable for, or giving any person any right
to acquire from Tech, any shares of its capital stock. No shares of
Tech's capital stock have been issued in violation of any preemptive
rights or applicable federal or state securities laws. Except
pursuant to the Texas Act, there are no restrictions, including but
not limited to self-imposed restrictions, on the retained earnings of
Tech or on the ability of Tech to declare and pay dividends. There
are no outstanding obligations of Tech to repurchase, redeem or
otherwise acquire any capital stock or other securities of Tech."
3. Section 4.1, TITLE TO SHARES, is hereby amended in its entirety to
read as follows:
"Section 4.1 TITLE TO SHARES. Immediately prior to the
Closing, the Owner(s) shall be the lawful Owner(s) and holder(s) of an
aggregate of no more than 2,950,000 shares of Tech Common Stock and,
on the Effective Date, shall hold all such shares free and clear of
any encumbrances or liens."
4. Section 6.1(f), TECH'S EQUITY INFUSION, is hereby amended in its
entirety to ready as follows:
"(f) TECH'S EQUITY INFUSION. Prior to the Closing as called for
herein, Tech shall have caused to be sold that number of shares of the
Tech Common Stock that would comply with the Exchange Ratio of Section
1.2 herein for no less than $2,300,000 cash. Such purchasers of
equity shall execute all documents deemed necessary by counsel of
Tanisys at or prior to the Closing, including but not limited to those
representations and warranties as set forth in Article 4 and
restrictions as set forth in Section 5.15."
5. All references to "3,100,000" shares of Tech Common Stock or Tanisys
Common Stock in documents relating to the Agreement, including but not limited
to the exhibits and schedules attached to the Agreement, are hereby changed to
"2,950,000."
6. All undefined capitalized terms used in this Amendment shall have the
meanings set forth in the Agreement.
7. All terms and conditions of the Agreement and related documents not
specifically modified herein are hereby ratified and confirmed in their
entirety.
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IN WITNESS WHEREOF, this Amendment No. 1 to the Agreement has been duly
executed by each of the parties to the Agreement as of the 16th day of May,
1996.
Tanisys Technology, Inc. Tanisys Acquisition Corp.
By: /s/ XXXX X. XXXXXXXX By: /s/ XXXX X. XXXXXXXX
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Chairman of the Board and Chairman of the Board and
Chief Executive Officer Chief Executive Officer
1st Tech Corporation
By: /s/ XXXX X. XXXXXXXXX /s/ XXXX X. XXXXXXXXX
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Chairman of the Board and Xxxx X. Xxxxxxxxx, Individually
Chief Executive Officer
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