Exhibit 10.8
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. II ("Tanisys Acquisition"), DarkHorse
Systems, Inc. ("DarkHorse"), Xxxx X. Xxxxxxxxx, Xxxxxx Xxxxxxxx and Xxxx
Xxxxxx (collectively, the "Owners") 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 DarkHorse (the "DarkHorse Common Stock"), subject to the
fulfillment of the conditions precedent set forth under Article 6,
including the simultaneous closing of that certain Agreement and Plan
of Merger dated April 9, 1996, by and between Tanisys Technology,
Inc., Tanisys Acquisition Corp. and 1st Tech Corporation and Xxxx X.
Xxxxxxxxx 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 DarkHorse Common
Stock an aggregate of 1,200,000 shares of Tanisys common stock, no par
value per share (the "Tanisys Common Stock"), such that each share of
DarkHorse Common Stock outstanding on the Effective Date, not to
exceed 1,200,000 shares of DarkHorse Common Stock in the aggregate, is
exchanged for one (1) share (the "Exchange Ratio") of Tanisys Common
Stock, with any excess shares of DarkHorse Common Stock resulting in a
reduction in the per-share Exchange Ratio. As used in this Agreement,
"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. 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 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 DarkHorse who exercise dissenters'
rights, if any, in connection with the Merger based upon such
shareholders' ownership of DarkHorse 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 DarkHorse 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
DarkHorse consists of 100,000,000 shares of DarkHorse Common Stock, no
par value, of which, as of the date hereof, 1,155,000 shares of
DarkHorse Common Stock are validly issued and outstanding, fully paid
and nonassessable, and upon the Effective Date, there will be no more
than 1,200,000 shares of DarkHorse Common Stock validly issued and
outstanding, fully paid and nonassessable. As of the date of this
Agreement, there are no shares of DarkHorse Common Stock held in the
treasury of DarkHorse and there are no other shares of the capital
stock of DarkHorse. As of the date hereof, except as disclosed in
DarkHorse'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
DarkHorse, any shares of its capital stock. No shares of DarkHorse'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 DarkHorse or on
the ability of DarkHorse to declare and pay dividends. There are no
outstanding obligations of DarkHorse to repurchase, redeem or
otherwise acquire any capital stock or other securities of DarkHorse."
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 Owners shall be the lawful Owners and holders of an
aggregate of no more than 1,200,000 shares of DarkHorse Common Stock
and, on the Effective Date, shall hold all such shares free and clear
of any encumbrances or liens."
5. All references to "1,500,000" shares of DarkHorse 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 "1,200,000."
6. Section 5.16, REGISTRATION STATEMENT, is hereby added to the
Agreement, as follows:
"Section 5.16 REGISTRATION STATEMENT. In the event Tanisys
elects to file a Registration Statement on Form S-1 or S-3 with the
Securities and Exchange Commission ("SEC") and is requested to do so
by the Owners, Tanisys agrees to register for sale up to 20,000 shares
of the Merger Consideration for the Owners and to cause such
Registration Statement to become effective as promptly as practical
thereafter and to maintain the effectiveness of such Registration
Statement until the earlier of the sale of the shares registered
thereby or the second anniversary of the Effective Date. Tanisys
shall be permitted to include on any such Registration Statement
shares of the Tanisys Common Stock to be issued (i) by the company or
by stockholders with registration rights directly to the public and/or
to institutional
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investors for cash, or (ii) by stockholders receiving registration rights
in connection with any acquisitions to be completed by Tanisys prior to,
simultaneously with, or subsequent to, completion of the Merger. Tanisys
shall also take any action required to be taken under any applicable state
blue sky or securities laws in connection with the issuance of the shares
of the Tanisys Common Stock to be issued as set forth in this Agreement or
the listing of such shares of the Tanisys Common Stock on the NASDAQ
National Market System, subject to official notice of issuance. The Owners
shall furnish to Tanisys, in writing, all information and covenants
concerning DarkHorse, the other holders of the DarkHorse Common Stock and
the proposed methods of sale or other disposition of the registered shares
as Tanisys, any underwriter, the SEC and/or any state or other regulatory
authority may request in connection with the registration of any shares or
any action required by Tanisys. The Owners will cooperate with Tanisys and
use reasonable efforts to assist Tanisys in, and Tanisys will bear all
costs and expenses (including its legal, accounting and printing costs and
filing fees payable to the SEC and other governmental bodies) related to,
the preparation and filing of the Registration Statement and all other
necessary documentation and to obtain all permits, consents, approvals
and authorizations of all third parties and governmental bodies necessary
to effect the registration of the 20,000 shares of the Merger Consideration
on the Registration Statement. The Owners agree to execute, deliver and/or
file with or supply to Tanisys, any underwriter, the SEC and/or any state
or other regulatory authority such information as is necessary to carry out
the provisions of this Section or to effect the registration or
qualification of the shares under applicable securities laws and
regulations of any jurisdiction and such information as Tanisys may
reasonably require to ensure that the transfer or disposition of the
registered shares is not in violation of any applicable securities laws.
The parties shall also enter into an agreement to provide reciprocal
indemnities to the other party for representations made in such
Registration Statement and related documents. Each of the Owners further
agrees to furnish to Tanisys not later than every thirty (30) days after
the date of effectiveness of the Registration Statement a report of the
number of registered shares sold during such thirty (30)-day period and to
cancel any orders to sell and/or to reverse any sales of registered
shares which orders and/or sales, in Tanisys' opinion, based upon the
opinion of legal counsel experienced in securities law matters were
effected in violation of applicable federal or state securities laws.
At its expense, Tanisys will furnish to each of the Owners such number
of copies of such Registration Statement and of each amendment and
supplement thereto (in each case, including all Exhibits) and such
number of copies of the prospectus included in such Registration
Statement as they shall request. Tanisys will notify the Owners of
any shares covered by such Registration Statement (i) at any time when
a prospectus relating thereto is required to be delivered under
applicable securities laws, (ii) of the happening of any event as a
result of which the prospectus included in such Registration Statement
as then in effect includes an untrue statement of material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances then existing, or (iii) of any other occurrence
which, under applicable
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securities laws, requires the prospectus to be revised or updated (and
upon receipt of such notice and until a supplemented or amended prospectus
is available, each of the Owners will cease to offer or to sell any shares
covered by the Registration Statement and will return all copies of the
prospectus to Tanisys if requested to do so by Tanisys and will not sell
any of the shares until provided with a current prospectus and notice
from Tanisys that they may resume their selling efforts). Upon the
occurrence of any of the events described in clauses (ii) or (iii) of the
preceding sentence, Tanisys agrees to use its best efforts to take all
necessary actions to revise or update the prospectus as promptly as
practical to the extent necessary for selling efforts to resume."
7. All undefined capitalized terms used in this Amendment shall have the
meanings set forth in the Agreement.
8. All terms and conditions of the Agreement and related documents not
specifically modified herein are hereby ratified and confirmed in their
entirety.
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
DarkHorse Systems, Inc.
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
/s/ XXXXXX XXXXXXXX /s/ XXXX XXXXXX
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Xxxxxx Xxxxxxxx, Individually Xxxx Xxxxxx, Individually
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