<PAGE> 1
As filed with the Securities and Exchange Commission on August 13, 1998
REGISTRATION NO. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TANISYS TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
WYOMING 74-2675493
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12201 TECHNOLOGY BOULEVARD, SUITE 125
AUSTIN, TEXAS 78727
(512) 335-4440
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
JOE O. DAVIS
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND CORPORATE SECRETARY
TANISYS TECHNOLOGY, INC.
12201 TECHNOLOGY BOULEVARD, SUITE 125
AUSTIN, TEXAS 78727
(512) 335-4440
(Name, address, including zip code and telephone number,
including area code, of agent for service)
---------------
Copy to:
PHILLIP M. RENFRO
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT STREET, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 224-5575
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Title of each Proposed Amount
class of securities Amount to be maximum offering Proposed maximum aggregate of registration
to be registered registered(1) price per security(2) offering price(2) fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value ............. 5,353,374 $2.2188 $11,878,066 $3,504
- ---------------------------------------------------------------------------------------------------------------------------
Total..................... 5,353,374 -- $11,878,066 $3,504
===========================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement shall also cover
any additional shares of Common Stock which become issuable by reason of
the terms of the Certificate of Designation for the Company's 5% Series
A Convertible Preferred Stock or any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the outstanding shares of Common Stock.
(2) Pursuant to Rule 457(c), the maximum offering price per security and
maximum aggregate offering price of the Common Stock have been
calculated on the basis of the average of the high and low sale prices
of the Common Stock as reported in the NASDAQ SmallCap Market System on
August 11, 1998.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
P R O S P E C T U S
5,353,374 SHARES
TANISYS TECHNOLOGY, INC.
COMMON STOCK
---------------
This Prospectus has been prepared for use in connection with the
proposed sale or distribution by certain stockholders (the "Selling
Stockholders") of an aggregate maximum number of 5,353,374 shares (the "Shares")
of common stock, no par value ("Common Stock"), of Tanisys Technology, Inc. (the
"Company"). On June 30, 1998 the Company completed the sale of 400 shares of
Series A Convertible Preferred Stock , par value $1.00 per share ("Series A
Stock"), as well as warrants to acquire an additional 199,999 shares of Common
Stock (the "Warrants"). See "Recent Developments." The Shares are being
registered by the Company pursuant to a Convertible Stock Purchase Agreement and
a Registration Rights Agreement between the Company and one of the Selling
Stockholders. For the pricing formula used in determining the conversion price
of the Series A Convertible Preferred Stock, See "Selling Stockholders." The
Series A Stock and the Warrants were issued pursuant to an exemption from
registration under Section 4(2) of the Securities Act of 1933, as amended. The
Shares may be sold from time to time by or for the account of the Selling
Stockholders, their pledgees, donees, transferees or other
successors-in-interest, in the over-the-counter market, on the NASDAQ SmallCap
Market or otherwise in privately negotiated transactions or otherwise, at fixed
prices that may be changed, at market prices prevailing at the time of sale, at
prices related to such market prices, or at negotiated prices. The Shares may be
sold by any one or more of the following methods, without limitation: (a) block
trade(s) in which the broker or dealer so engaged will attempt to sell the
Shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction; (b) purchases by a broker or dealer as principal
and resale by such broker or dealer for its account pursuant to this Prospectus;
(c) an exchange distribution in accordance with the rules of The Nasdaq Stock
Market or applicable exchange; (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (e) privately negotiated
transactions; (f) short sales; (g) a combination of any such methods of sale;
and (h) any other method permitted pursuant to applicable law. See "Plan of
Distribution."
The Common Stock is traded on the NASDAQ SmallCap Market System (the
"SmallCap Market") under the symbol "TNSU." On August 12, 1998, the last
reported sale price for the Common Stock on the SmallCap Market was $2.125 per
share.
The Company will receive no portion of the proceeds of the sale of the
Shares offered hereby and will bear all costs, expenses and fees incident to
their registration. See "Plan of Distribution."
The Shares have not been registered for sale under the securities laws
of any state or jurisdiction as of the date of this Prospectus. Brokers or
dealers effecting transactions in the Shares should confirm the registration
thereof under the securities laws of the states in which such transactions
occur, or the existence of any exemption from registration.
---------------
AN INVESTMENT IN THE SHARES OFFERED HEREBY INVOLVES A HIGH DEGREE
OF RISK. PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS
SET FORTH UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 13.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECU-
RITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August 13, 1998
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"SEC") in Washington, D.C., a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered by this Prospectus.
Certain of the information contained in the Registration Statement is omitted
from this Prospectus, and reference is hereby made to the Registration Statement
and exhibits and schedules relating thereto for further information with respect
to the Company and the securities offered by this Prospectus. The Company is
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and, in accordance therewith, files
reports, proxy statements and other information with the SEC. Such reports,
proxy statements and other information are available for inspection and copies
of such materials may be obtained upon payment of the fees prescribed therefor
by the rules and regulations of the SEC from the SEC, at its principal offices
located at Judiciary Plaza, 450 Fifth Street, Room 1024, Washington, D.C. 20549,
and at the following regional offices of the SEC: Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661- 2511 and at Seven World
Trade Center, Suite 1300, New York, New York 10048, and copies of all or any
part of the Registration Statement may be obtained from the Public Reference
Section of the SEC, at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549 upon the payment of the fees prescribed by the SEC. The SEC maintains a
WorldWide Web site on the Internet at http://www.sec.gov that contains reports,
proxy statements and other information regarding registrants that file
electronically with the SEC.
INCORPORATION OF CERTAIN DOCUMENTS
The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997 and the Company's Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1997 and March 31, 1998 are hereby incorporated
herein by reference.
The description of the Company's Common Stock, which is contained under
the caption "Description of Registrant's Securities to be Registered" in the
Form 10 filed with the SEC on November 27, 1996 and subsequently amended by the
Form 10/A filed with the SEC on May 12, 1997, is hereby incorporated herein by
reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, after the date of this Prospectus and prior to the
termination of the Registration Statement of which this Prospectus is a part
with respect to registration of the Shares, shall be deemed to be incorporated
by reference in this Prospectus and be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference in this Prospectus shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference, modifies or replaces such
statement.
The Company undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, upon written or oral request of
any such person, a copy of any or all of the documents incorporated by reference
herein, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates. Written or oral requests for such copies should be directed to:
Tanisys Technology, Inc., 12201 Technology Boulevard, Suite 125, Austin, Texas
78727, Attention: Joe O. Davis, telephone (512) 335-4440.
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<PAGE> 4
THE COMPANY
The Company offers build-to-order services, designs and markets
products consisting of semiconductor memory modules, designs and builds memory
module testers and provides design services in conjunction with the licensing of
its Touch sensor products. Operating under the Tanisys Technology name since
1994, the Company has developed into an independent manufacturer of standard and
custom semiconductor memory modules for a variety of computer and electronics
OEMs. The Company also markets the DarkHorse line of memory testers and licenses
its proprietary Tanisys Touch technology. In 1997, the Company changed its focus
from selling off-the-shelf semiconductor memory modules to specializing in
services designed to provide OEM customers with build-to-order board-level
solutions. Currently, approximately 50% of the Company's revenues are derived
from selling off-the-shelf semiconductor memory modules. In connection with its
build-to-order services, the Company has developed extensive design and
manufacturing expertise under its Comprehensive Logistics and Supply Solutions
("CLASS") Program to respond to its customers' rapidly changing requirements. To
this end, the Company maintains design centers and manufacturing facilities in
Austin, Texas and Hamilton, Lanarkshire, Scotland. The Company's principal
customers include electronic OEMs, semiconductor manufacturers, computer
distributors, value-added resellers ("VARs") and system integrators. The
Company's OEM customers currently include Siemans AG, LG Semicon, Dell Computer
Corporation, Bay Networks and Solectron Corp. The Company also provides products
for the build-to-order programs of Compaq Computer Corporation, Dell Computer
Corporation and Hewlett Packard Company.
The Company was organized under the laws of the Province of British
Columbia, Canada, on January 27, 1984, as Montebello Resources Ltd. to exploit
the mineral, oil and gas exploration business in British Columbia and Manitoba,
Canada. On October 7. 1992, the Company changed its name to First American
Capital Group Inc. The Company was unsuccessful in the oil and gas business, and
in 1992 deemed itself inactive pursuant to the rules and regulations of the
Vancouver Stock Exchange ("VSE"), where its common stock, no par value per share
(the "Common Stock"), had been traded. During the first two quarters of 1993,
the Company was reorganized in accordance with the rules of the VSE. As part of
this reorganization, the Company acquired certain computer game controller
technology, which was the forerunner of the Company's Tanisys Touch technology.
The Company changed its name to Rosetta Technologies Inc. on May 13, 1993. In
June 1993, Rosetta Marketing and Sales, Inc. was incorporated in the State of
Texas as a wholly owned subsidiary of the Company to provide marketing for the
Company's products. On June 30, 1993, the Company acquired all of the
outstanding capital shares of Timespan Communications Corp. ("Timespan") for the
issuance of Common Stock and the assumption of certain indebtedness. Also on
June 30, 1993, the Company filed Articles of Continuance with the Secretary of
State of the State of Wyoming and was issued a Certificate of Continuance, which
continued the corporation's charter under the Wyoming Business Corporation Act
as if it had been incorporated thereunder. On October 1, 1993, the Company
caused all of the software technology owned by Timespan to be transferred to the
Company, and Timespan subsequently has been liquidated. On July 11, 1994, the
Company changed its name to Tanisys Technology, Inc. The Company's Common Stock
has traded on the NASDAQ SmallCap Market under the symbol "TNSU" since May 22,
1997.
Effective May 21, 1996, the Company acquired, through mergers with its
wholly owned subsidiaries, all of the outstanding common stock of 1st Tech
Corporation ("1st Tech") and DarkHorse Systems, Inc. ("DarkHorse") and began
operations in Austin, Texas as a consolidated group of companies providing
custom design, engineering and manufacturing services, test solutions and
standard and custom module products to leading OEMs in the computer networking
and telecommunications industries.
RECENT DEVELOPMENTS
Effective February 1998, the Company established Tanisys (Europe)
Limited, a wholly owned subsidiary of the Company located in Scotland. Tanisys
(Europe), Limited will offer its Comprehensive Logistics and Supply Solutions
("CLASS") program, build-to-order services, turn-key manufacturing services and
manufacture and market products consisting of semiconductor memory modules.
Tanisys (Europe), Limited also will serve as the European sales and marketing
office for DarkHorse tester products designed and manufactured by the Company,
including the recently announced SIGMAo 3(TM) tester that offers module
manufacturers high-volume production testing systems for 100 MHZ Synchronous
Dynamic Random Access Memory ("SDRAM").
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<PAGE> 5
Pursuant to a Convertible Preferred Stock Purchase Agreement dated June
30, 1998 (the "Purchase Agreement") between the Company and KA Investments LDC,
a Cayman Islands corporation ("KA Investments"), the Company issued 400 shares
of its 5% Series A Convertible Preferred Stock, par value $1.00 per share
("Series A Stock"), for an aggregate purchase price of $4,000,000. The Series A
Stock is convertible into shares of Common Stock pursuant to a formula based
upon the Conversion Price, which shall be equal to the lower of either (a) $2.31
per share or (b) 80% of the average of the three lowest closing bid prices per
share of Common Stock for the 30 trading days immediately prior to conversion
(as more fully described in the Articles of Incorporation of the Company).
Dividends accrue on the Series A Stock at a rate of 5% per annum, and may be
paid in shares of Common Stock, but must be paid in cash upon the occurrence of
certain events. The Company is required to redeem certain of the shares of
Series A Stock upon the occurrence of certain triggering events. In addition,
the Company granted warrants (the "Warrants") to KA Investments, Midori Capital
Corporation ("Midori"), Hoth Incorporated ("Hoth") and Randy Stein ("Stein") (KA
Investments, Midori, Hoth and Stein collectively referred to herein as the
"Selling Stockholders") to purchase an aggregate of approximately 200,000 shares
of Common Stock at a purchase price of $3.00 per share (subject to adjustment as
provided by the terms of the Warrants). The Warrants may be exercised on or
before June 30, 2002. Pursuant to a Registration Rights Agreement between the
Company and KA Investments dated June 30, 1998, the Company granted the Selling
Stockholders certain registration rights related to the shares of Common Stock
issuable upon conversion of the Series A Stock and upon the exercise of the
Warrants. The Registration Statement to which this Prospectus is a part has been
filed pursuant to the terms of such Registration Rights Agreement and registers
the resale by the Selling Stockholders of such shares of Common Stock issuable
upon conversion of the Series A Stock and upon exercise of the Warrants. Each of
the Purchase Agreement, the Registration Rights Agreement, a form of the
Warrants and the Articles of Incorporation of the Company, as amended
(containing the terms of the Series A Stock) have been filed as exhibits to the
Registration Statement to which this Prospectus is a part.
On July 27, 1998, the Company announced its results for its third
fiscal quarter ended June 30, 1998. Gross profit for the quarter decreased to
$600,000 on $6.8 million in net sales, a 9.3% gross margin, from $1.5 million
gross profit on $11.2 million in net sales, a 13.1% gross margin, in the third
quarter of fiscal 1997. For the third quarter of fiscal 1998 the Company
reported a net loss of $2.6 million, as compared to a $2.3 million loss in the
same quarter of 1997. Net loss per share decreased to $0.12 per share in the
third quarter of fiscal 1998 as compared to $0.13 in the third quarter of fiscal
1997.
THE BUSINESS
INDUSTRY BACKGROUND
The demand for semiconductor memory modules in digital electronic
systems has grown significantly over the last several years, resulting in the
increased importance of memory in determining system performance. An increasing
demand for greater system performance requires that electronics manufacturers
increase the amount of memory incorporated into a system.
Factors contributing to the growing demand for memory include growing
unit sales of personal computers ("PCs") in the business and consumer market
segments; increasing use of PCs to perform memory-intensive graphics tasks;
increasingly faster microprocessors; the release of increasingly memory
intensive software; and the increasing performance requirements of workstations,
servers and networking and telecommunications equipment.
Semiconductor memory products are segmented into three primary classes:
Dynamic Random Access Memory ("DRAM"), Static Random Access Memory ("SRAM") and
non-volatile memory, such as Flash memory. DRAM typically is the large "main"
memory of systems; SRAM provides higher performance; and Flash memory and other
non-volatile memory retain their contents when power is removed. In addition,
within each of these broad categories of memory products, semiconductor
manufacturers are offering an increasing variety of memory devices which are
designed for application specific uses.
The growing variety of memory components also drives demand for memory
tester systems to test each of these memory module types.
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<PAGE> 6
THE DRAM MARKET
Of the three primary classes of semiconductor memory, DRAM is
predominately used in computers due to lower cost and increased performance.
Market demand for higher performance PCs and workstations and the increased
focus on high-throughput networking and telecommunications systems are creating
a need for higher volumes of DRAM memory in electronic systems. For example,
International Business Machines Corp ("IBM") has estimated that PCs use 70% of
all memory, and market researcher International Data Corporation ("IDC") expects
the average amount of memory used by each PC to grow from 19.6 megabytes in 1996
to 96 megabytes by 2001.
The Company believes the near-term DRAM market will fragment into
increased numbers of semiconductor memory module designs due to different
architectures, voltages and densities emerging for new systems while demand
continues for current and older designs. Popular among the architectures are
SDRAM, Synchronous Graphics RAM ("SGRAM"), RAMBUS (a new proprietary memory
technology), Video RAM ("VRAM"), Fast Page Mode ("FPM") and Extended Data Out
("EDO"). DRAM integrated circuits are undergoing a shift to 64 megabits
("Mbits") and in operating voltages from 5.0 volts to 3.3 volts and less.
Therefore, the Company anticipates the combinations of module types will greatly
increase over the next several years.
THE SRAM MARKET
The market for SRAM typically is segmented into low power and high
speed segments. Low power SRAM devices are used primarily in computing or
electronics industry applications in which minimal power consumption is the top
priority. Popular uses of low power SRAM devices include portable computers that
rely on battery power.
The primary market demand for high speed SRAM devices is to "buffer"
fast system components from slower system components. In PCs, the most common
use of SRAM devices has been as "cache" memory, which increases a system's
performance and avoids having the increasingly faster microprocessor waiting on
slower DRAM. Access rates of DRAMs have not increased as fast as the speed of
microprocessors, and therefore, the demand for cache memory has increased. High
speed SRAMs also are seeing a rapid proliferation of configuration combinations
due to advances in speed, architecture, density and operating voltages. These
advances are needed primarily due to the increasing speed and complexity of
microprocessors such as the Pentium II, Pentium Pro, the PowerPC and the Alpha
microprocessor family. High speed SRAMs are achieving access times below 3
nanoseconds and are developing synchronous modes similar to SDRAMs to meet the
needs of these new microprocessors.
THE FLASH MEMORY MARKET
Flash memory is a specialized non-volatile memory that can be updated
similar to DRAM but retains its data after power has been turned off. The
ability to update the contents of Flash memory is the main benefit relative to
most other non-volatile memory devices, such as erasable programmable read only
memory ("EPROM") devices, that makes Flash memory useful for containing software
which is likely to need updating. Typical uses include Basic Input Output System
("BIOS") for PCs, control memory for the rapidly evolving market of thin
client/network computer/Windows terminals, control programs for routers and
other networking equipment and storage for portable computers, personal digital
assistants and digital cameras. Consequently, the market for Flash memory is
growing rapidly.
Flash memory is often packaged in removable modules to meet the needs
of portable applications. These modules vary widely for their target systems.
There are many Flash memory architectures available in the market today, which
are often offered in multiple modes and voltages. Therefore, Flash memory has
many configurations and the number of configurations has proliferated widely.
MEMORY MODULE MARKET
Semiconductor memory modules are small printed circuit board assemblies
containing semiconductor memory devices and support circuitry. Many computer and
electronic systems use semiconductor memory modules as standard architectural
components. The modules permit OEMs to more easily upgrade their systems and to
increase flexibility by permitting different types of modules to configure the
one base system for multiple price or performance targets. Semiconductor memory
modules often attach directly to a computer system board, eliminating or
reducing the need
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<PAGE> 7
to include memory devices on the system board for space reasons as well as
flexibility of the base system. Semiconductor memory modules also permit OEMs to
manufacture systems on a build-to-order basis by permitting the OEM to configure
the system after the customer's order is placed. The benefits of build-to-order
for OEMs are faster availability, increased customer satisfaction, reduced
investment in inventories and reduced costs. Semico Research Corporation
estimates that the market size for semiconductor memory modules in 1997 was
$22.6 billion worldwide.
The memory module market is segmented into off-the-shelf and custom
components. Off-the-shelf modules often comply with industry standards and are
available from multiple vendors. These are usually popular, high volume designs
using DRAM memory which are used in desktop PCs, notebook computers, network
routers, disk drive controllers and printers. These modules typically are sold
directly to OEMs and to end users via computer resellers.
Custom semiconductor memory modules meet the unique needs of OEM
computer and electronic systems. The proliferation of memory device options has
resulted in specialized semiconductor memory modules that are ideal for the
performance of a particular system or a set of applications but are not
available off the shelf. These custom modules are typically contracted from a
few suppliers. The limited market for such modules often dictates build-to-order
manufacturing in order to limit inventory risks.
Computer and electronics manufacturers frequently choose to use memory
expert partners for the design and manufacture of semiconductor memory modules
due to the wide array of memory devices which can be considered for a target
system. Increasing speeds make the design and testing of modules more complex,
thus using memory partners permits system manufacturers to focus on
differentiating their product. OEMs outsource these services in a range of
levels, including build-to-print (manufacturing only), turnkey design and
manufacture, vendor specification and build-to-order.
The manufacturers of semiconductor memory modules consist of two
subsets: semiconductor manufacturers who build modules and independent third
parties who acquire memory devices and integrate them into modules.
Semiconductor vendors controlled 64% of the module market in 1993 while third
party vendors controlled 57% in 1996 according to Semico Research Corporation.
The Company expects the trend toward dominance by independent third parties to
continue as it believes that semiconductor manufacturers may not have a business
model in place which is suited to meet the needs of many large customers of
custom semiconductor memory modules, including support for build-to-order.
Independent third party manufacturers of semiconductor memory modules
supply product to two primary market segments: the OEM channel and the reseller
channel. Third party suppliers to the OEM channel typically offer custom
product, although some computer and peripheral OEMs use off-the-shelf
semiconductor memory modules. Third party suppliers to the reseller channel
typically offer standard DRAM semiconductor memory modules as an upgrade product
sold through computer distributors and retail channels. Semiconductor
manufacturers sell modules almost exclusively to OEMs. Both semiconductor memory
suppliers and independent third party module manufacturers are customers for
module testers, and as such, represent both potential customers and competitors
of the Company. The memory module tester market is described below under the
heading "Memory Module Tester Market."
MEMORY MODULE TESTER MARKET
Memory module testers are important to assure that semiconductor memory
modules meet the necessary specifications of performance. Memory module tester
use typically is segmented into system manufacture and system aftermarket.
System manufacture typically involves the manufacturer of the memory module
being able to test its completed modules. This usually requires "at speed"
testing, where the module is exercised under the same demands as actual use.
Buyers generally evaluate reliability, productivity, accuracy, advanced
automation, software flexibility, service, customer support and price. The
Company believes that these purchase criteria are typical of module tester
buyers as well. Most manufacturers of semiconductor memory modules perform "at
speed" testing of all modules with exacting and accurate testers. Significant
expansion of test capacity is likely due to changing architectures and strong
growth of memory demand.
The actual test for a module is unique to its design in terms of
architecture, pinout, speed rating, voltage, organization and size and will use
any of several common test algorithms. Therefore, the number of potential memory
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<PAGE> 8
test configurations is much greater than the number of semiconductor memory
modules. This makes test development a potentially costly task. The ability of a
tester manufacturer to provide support for the development of low cost, accurate
tests is a significant consideration in the buying decision.
Module testing requirements for the system aftermarket are typically
less robust. Memory additions to systems in use typically are already tested in
accordance with the needs of the system manufacture segment and need only module
identification to assure the correct module is being installed. Servicing of
failed systems often requires limited testing of modules but typically does not
require "at speed" testing. As a result, aftermarket module testing usually has
higher sensitivity for portability and cost than does module testing at the time
of system manufacture.
TOUCH SENSOR MARKET
The touch sensor market is extremely broad since the sensor is capable
of being utilized in any application where a switch is needed. Any product which
benefits from a low profile, sealed, environmentally robust, highly durable, low
cost, simple or easily customized switch is a very good candidate for a touch
sensor switch.
PRODUCTS AND SERVICES OF THE COMPANY
The Company offers build-to-order services, designs and markets
products consisting of semiconductor memory modules, designs and builds memory
module testers and provides design services in conjunction with the licensing of
its Touch sensor products. The Company's semiconductor memory modules include
DRAM, SRAM and Flash memory. The Company offers custom semiconductor memory
modules, as well as standard semiconductor memory modules that comply with
industry standards established by the Joint Electronic Development Engineering
Council ("JEDEC"). The Company's memory module testers are oriented for both
system assembly and aftermarket purposes and include a broad line of test
fixtures and test algorithms.
COMPREHENSIVE LOGISTICS AND SUPPLY SOLUTIONS
The Company offers build-to-order services for custom products under
its CLASS program. CLASS is oriented toward building alliances with
semiconductor suppliers and major computer and electronic manufacturers. The
Company will assist these customers in achieving fast time-to-market for new
products as well as rapid manufacturing cycle times. The Company will assist
semiconductor suppliers develop increased market share and help the computer and
electronic manufacturers to be faster to market, providing lower cost and more
rapidly satisfying the needs of their customers.
Specific functions of CLASS include design/development, quick-turn
prototyping, assembly, test development, documentation, supply chain management,
complete Electronic Data Interchange ("EDI") integration, support services and
security/disaster recovery plan. The Company offers design expertise in memory
and other product areas and is unique in maintaining its own commercial test
equipment capabilities.
SEMICONDUCTOR MEMORY MODULES
DRAM. The Company offers a wide line of DRAM semiconductor memory
modules, including single in-line semiconductor memory modules ("SIMMs"), dual
in-line semiconductor memory modules ("DIMMs") and small outline dual in-line
semiconductor memory modules ("SO DIMMs"). The Company's DRAM modules are
available in various configurations of up to 168 pins and densities of up to 256
MBytes. These modules are available in FPM, EDO, SDRAM and SGRAM architectures,
with both 5.0 volt and 3.3 volt versions.
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<PAGE> 9
The following chart summarizes the Company's more than 550
off-the-shelf DRAM module products:
<TABLE>
<CAPTION>
PRODUCT DESCRIPTION TYPES MODES DENSITIES PRIMARY USAGE
<S> <C> <C> <C> <C>
168-pin PC100 Synchronous x64/x72ECC SDRAM 16MB-256MB Newest PCs, highend workstations
DIMM
168-pin PC66 Synchronous x64/x72ECC FPM/EDO 16MB-256MB Newer PCs, servers, workstations,
DIMM routers
168-pin PC100 Registered x72ECC SDRAM 32MB-512MB Newest highend servers
DIMM
168-pin DIMM (buffered or x64/x72ECC FPM/EDO 8MB-128MB Legacy PCs, switches, routers,
unbuffered) controllers
144-pin Synchronous x64 SDRAM 8MB-64MB Newest notebooks, network PCs,
SO-DIMM set tops
144-pin SO-DIMM x64 FPM/EDO 8MB-64MB Later notebooks, laptops and set
tops
72-pin SO-DIMM x32 FPM/EDO 4MB-32MB Legacy laptops, notebooks ATMs
72-pin SIMMs X32/x36/x40 FPM/EDO 4MB-128MB Legacy PC servers, routers and
controllers
</TABLE>
MEMORY MODULE TESTER PRODUCTS
The Company's memory module testers are marketed under the DarkHorse
brand name to utilize existing brand awareness. The tester line is oriented
toward both module manufacturers for system assembly and aftermarket purposes.
The SIGMAo 3 tester is sold to module manufacturers who build leading edge SDRAM
modules for the newest PC100 personal computers and is targeted towards high
volume production testing. The SIGMAo 2 tester is designed for module
manufacturers who need to perform "at speed" tests of synchronous and
asynchronous DRAM, SRAM, Flash memory and VRAM modules. It is aggressively
priced relative to major competitors. The SIGMAo 2 is being used widely by
leading module manufacturers throughout the world.
The Company also markets the portable SIGMAo LC and SYNCo LC testers
for the aftermarket segment. Customers in this segment value the ease-of-use and
rapid identification of module type. The types of customers for these testers
include module manufacturers, module retailers, large retail chains using them
for PC service purposes, and distributors. New tester development is ongoing,
driven by new memory industry developments.
The DarkHorse testers have standard or optional capabilities to support
the following types of products:
- 30 and 72 pin SIMMs for PCs -- Buffered 168 pin DIMMs for PCs
- Buffered 168 pin DIMMs for PCs
- Unbuffered 168 pin DIMMs for PCs
- Unbuffered 168 pin SDRAM DIMMs for PCs
- 144 pin SO DIMMs for certain proprietary notebook computers
- 144 pin JEDEC SO DIMMs
- SOJ normal DRAM components
- SOJ SRAM components
- SOJ wide DRAM components
- TSOP DRAM components
- DIP SRAM components
- Notebook docking adapters
- 60, 68 and 88 pin credit card semiconductor memory modules
- VRAM upgrades
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- 80 pin JEDEC Flash memory
- Modules for Intel Corp. "COAST" architecture
- Prototype development of proprietary test fixtures
The Company differentiates its testers by targeting its tester features
specifically for the purpose of testing memory products. The Company's testers
are designed for comparable performance at lower prices relative to general
purpose testers offered by Hewlett-Packard Company and Advantest.
TOUCH SENSOR PRODUCTS
Tanisys Touch is a proprietary technology which the Company attempts to
protect by patents, copyrights and trademarks, and is available for licensing to
third parties for incorporation into their products. The Company licenses
Tanisys Touch to OEMs which embed it into various products as a robust switching
mechanism. The touch sensor market is primarily an alternative to a variety of
switch technologies such as mechanical switches, membrane switches and bubble
switches.
Some advantages of Tanisys Touch relative to alternative switch
technologies are no moving parts, high reliability, ability to work through most
plastics, easy customization, ability to work on multiple materials and low
cost. Relative to other vendors' touch implementations, Tanisys Touch does not
need reference capacitors, analog to digital converters or multiple electrodes.
Instead, the Company's proprietary technology is designed to be a reliable,
simple, low cost touch implementation, and the Company intends to position these
advantages against alternative switch technologies.
CUSTOMERS, SALES AND MARKETING
The Company's primary customers include computer and electronics OEMs,
semiconductor manufacturers, distributors, corporate end users, VARs and systems
integrators. In fiscal 1997 and 1996, the Company's ten largest customers
accounted for approximately 53.2% and 45.3% of net sales, respectively. During
fiscal 1997, the Company had one customer, Tandy Corporation, that accounted for
12.0% of net sales. In fiscal 1996, no one customer accounted for more than 10%
of net sales.
The Company primarily sells its module products directly and through a
network of independent sales representative organizations to OEM customers
worldwide. The Company sells the majority of its tester products directly to
other module manufacturers and sells a portion through distribution partners and
independent sales representative organizations. Licensing of Tanisys Touch is
through licensing agreements with customers.
The Company maintains relationships with leading global suppliers of
memory semiconductor devices and frequently works jointly with these suppliers
in quoting customer opportunities.
The Company's OEM marketing activities include advertising in trade and
business magazines, direct mail and solicitation via the Company's Internet web
site.
Sales generally are made against standard customer purchase orders. The
Company's backlog generally includes those customer orders for which it accepted
purchase orders and planned shipment dates within the next year. Backlog is not
an indicator of future sales, and orders in the backlog are subject to change in
delivery terms or even cancellation. Accordingly, there is no assurance that
current backlog will lead to future sales. The Company's total backlog was $2.4
million and $356,000 at fiscal 1997 and 1996 year end, respectively.
RESEARCH AND DEVELOPMENT
The Company's management believes that the timely development of new
products and technologies is essential to maintain the Company's competitive
position. In the electronics market, the Company's research and development
activities are focused primarily on new module products, the continual
improvement in memory test products and solutions and the ongoing improvement in
manufacturing processes and technologies. Additionally, the Company provides
research and development services for customers either as joint or contracted
development. The
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<PAGE> 11
Company plans to continue to devote substantial research and development efforts
to the design of new module products which address the requirements of OEM,
corporate and retail customers.
The Company's management believes that its Tanisys Touch technology has
been developed to a viable commercial level and that the next step is
introduction of consumer products utilizing Tanisys Touch into the marketplace
by OEMs. Support continues to be provided to OEMs in the PC and appliance
industries toward this end.
The Company's research and development expenses were $2.6 million in
fiscal 1997, $1.1 million in fiscal 1996 and $410,000 in fiscal 1995.
COMPETITION
The memory module and memory test equipment industries are intensely
competitive. Each of these markets includes a large number of competitive
companies, several of which have achieved a substantial market share. Certain of
the Company's competitors in each of these markets have substantially greater
financial, marketing, technical, distribution and other resources, greater name
recognition, lower cost structures and larger customer bases than the Company.
In the memory module market, the Company competes against semiconductor
manufacturers that maintain captive memory module production capabilities,
including Samsung Electronics Company Limited ("Samsung") and Micron
Electronics, Inc. (a subsidiary of Micron Technology, Inc.). The Company also
competes with independent memory module manufacturers, including Smart Modular
Technologies, Inc. and Kingston Technology, Inc. In the memory tester market,
the Company competes primarily with companies such as Hewlett-Packard, Inc. and
Advantest, Inc. Competition for the Company's CLASS business of manufacturing
services includes SCI Systems, Inc. and Avex Electronics, Inc. The Company faces
competition from current and prospective customers that evaluate the Company's
capabilities against the merits of manufacturing products internally. In some
cases the Company's tester customers represent direct competition to the
Company's memory module business. In addition, certain of the Company's
competitors, such as Samsung, are significant suppliers to the Company. These
suppliers may have the ability to manufacture competitive products at lower
costs than the Company as a result of their higher levels of integration. The
Company also faces competition from new and emerging companies that have
recently entered or may in the future enter the markets in which the Company
participates.
The Company expects its competitors to continue to improve the
performance of their current products, to reduce their current product sales
prices and to introduce new products that may offer greater performance and
improved pricing, any of which could cause a decline in sales or loss of market
acceptance of the Company's products. There can be no assurance that
enhancements to or future generations of competitive products will not be
developed that offer better prices or technical performance features than the
Company's products. To remain competitive, the Company must continue to provide
technologically advanced products and manufacturing services, improve quality
levels, offer flexible delivery schedules, deliver finished products on a
reliable basis, reduce manufacturing and testing costs and compete favorably on
the basis of price. In addition, increased competitive pressure has led in the
past, and may continue to lead to, intensified price competition, resulting in
lower prices and gross margin, which could materially adversely affect the
Company's business, financial condition and results of operations. There can be
no assurance that the Company will be able to compete successfully in the
future.
INTELLECTUAL PROPERTY
The Company has filed the following applications with the U.S. Patent
and Trademark Office for patents to protect its intellectual property rights in
products and technology that have been developed or are under development:
1. Application covering claims for hardware, firmware,
software and methods operations for a broad range of applications for
its touch technology. The patent was granted on April 16, 1996 under
Registration No. 5,508,700. Corresponding international patent
applications have been filed in selected European, Asian and North
American countries. Management of the Company believes that if
competitors decide to pursue the discrete touch market, they could be
in violation of the Company's patent. The Company has no knowledge of
any such infringement to date.
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<PAGE> 12
2. Application for "Computer Input Device for Use in
Conjunction with a Mouse Input Device." This pending application is
targeted to protect the Company's technology related to capacitive
sensing used in a mouse pad or other flush-mounted touch device.
3. Application for "Capacitive Sensitive Input Circuit with
Common Pad." This pending application is targeted to protect the
Company's touch technology which could be used in extreme or hostile
environments and can function to improve the reliability of touch
sensor operation in such environments.
4. Application for "Capacitive Sensitive Switch Method and
System." This pending application relates generally to touch sensor
switches, and more particularly to an automated digital system for
sensing the capacitance of touch pads to determine when a physical
object has come into contact with a touch pad.
5. Application for "Synchronous Memory Identification System."
This pending application relates generally to memory test systems, and
more particularly to an automated method and system for identifying
SDRAM and SGRAM memories.
6. Application for "Nested Loop Method of Identifying
Synchronous Memories." This pending application relates generally to
memory test systems, and more particularly to a nested loop method
which may be used in a memory test system to identify SDRAM and SGRAM
memories.
7. Application for "Synchronous Memory Test System." This
pending application relates generally to memory test systems, and more
particularly to a test system for SDRAM and SGRAM memories.
8. Application for "Enhanced Contact Test." This pending
application relates to a system for determining if one memory module
contact is shorted to any other contact on the same memory module.
9. Application for "Microsequencer." This pending application
relates generally to a programmable instruction processor for
sequencing the operation of a high-speed memory test system.
10. Application for "Parametric Test System." This pending
application relates to a system for shortening the time needed to
determine if memory module contacts were successfully connected during
the manufacturing process.
11. Application for "Programmable Pulse Generator." This
pending application relates to a circuit for producing pulses of
digitally programmable latency and width.
12. Application for "Test System." This pending application
relates to a system and method for using a graphical waveform editor to
program timing parameters into a memory test system.
There can be no assurance that the pending patent applications will be
approved or approved in the form requested. The Company expects to continue to
file patent applications where appropriate to protect its proprietary
technologies; however, the Company believes that its continued success depends
primarily on factors such as the technological skills and innovation of its
personnel rather than on patent protection. In addition, the Company attempts to
protect its intellectual property rights through trade secrets, copyrights,
trademarks and a variety of other measures, including non-disclosure agreements.
There can be no assurance, however, that such measures will provide adequate
protection for the Company's trade secrets or other proprietary information,
that disputes with respect to the ownership of its intellectual property rights
will not arise, that the Company's trade secrets or proprietary technology will
not otherwise become known or be independently developed by competitors or that
its intellectual property rights can otherwise be protected meaningfully. There
can be no assurance that patents will issue from pending or future applications
or that if patents are issued, they will not be challenged, invalidated or
circumvented, or that rights granted thereunder will provide meaningful
protection or other commercial advantage. Furthermore, there can be no assurance
that third parties will not develop similar products, duplicate the Company's
products or design around the patents owned by the Company or that third parties
will not assert intellectual property infringement claims against the Company.
In addition, there can be no assurance that foreign intellectual property laws
will adequately protect the
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<PAGE> 13
Company's intellectual property rights abroad. The failure of the Company to
protect its proprietary rights could have a material adverse effect on its
business, financial condition and results of operations.
The Company's executive offices are located at 12201 Technology
Boulevard, Suite 125, Austin, Texas 78727, and its telephone number is
512/335-4440.
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<PAGE> 14
RISK FACTORS
Other than historical and factual statements, the matters and items
discussed in this Prospectus are forward-looking statements that involve risks
and uncertainties. The Company's actual results may differ materially from the
results discussed in the forward-looking statements. In addition to other
information contained in this Prospectus, the following factors could contribute
to such differences. Prospective investors should carefully consider the
following factors and cautionary statements in determining whether to purchase
shares of Common Stock in the offering made hereby. All factors should be
considered in conjunction with the other information and financial data
appearing elsewhere in this Prospectus and in the documents incorporated herein
by reference. The Company does not intend to update these forward-looking
statements. See "Disclosure Regarding Forward-Looking Statements."
AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED BY THIS PROSPECTUS
INVOLVES A HIGH DEGREE OF RISK. EACH INVESTOR SHOULD CAREFULLY EXAMINE THIS
ENTIRE PROSPECTUS AND SHOULD GIVE PARTICULAR ATTENTION TO THE RISK FACTORS SET
FORTH BELOW.
HISTORY OF LOSSES; PROFITABILITY UNCERTAIN.
The Company has experienced operating losses since inception. At March
31, 1998, the Company had an accumulated deficit of approximately $25 million.
Primarily as a result of its acquisitions in 1996 and 1997, the Company
generated revenues of approximately $48 million during the fiscal year ended
September 30, 1997.
In the future, the Company expects to have increased cash outflow
requirements as a result of expenditures related to the expansion of sales and
marketing activity, expansion of manufacturing capacity, and possible investment
in or acquisition of additional complementary products, technologies or
businesses. The cash needs of the Company have changed significantly as a result
of the acquisitions completed during the last two years and the support
requirements of the added business focus areas. There can be no assurance that
the Company will not continue to incur losses, that the Company will be able to
raise cash as necessary to fund operations or that the Company will ever achieve
profitability.
FUTURE ADDITIONAL CAPITAL REQUIREMENTS; NO ASSURANCE FUTURE CAPITAL WILL BE
AVAILABLE.
The Company's capital requirements will depend on numerous factors,
including market acceptance and demand for its products; the resources the
Company devotes to the development, manufacture and marketing of its products;
the progress of the Company's product development programs; the resources
required to protect the Company's intellectual property; the resources expended,
if any, to acquire complementary businesses, products and technologies; and
other factors. The timing and amount of such capital requirements cannot be
accurately predicted. Funds also may be used for the acquisition of businesses,
products and technologies that are complementary to those marketed by the
Company. Consequently, although the Company believes that its revenues and other
sources of liquidity will provide adequate funding for its capital requirements
through at least 1998, the Company may be required to raise additional funds
through public or private financings, collaborative relationships or other
arrangements. There can be no assurance that the Company will not require
additional funding or that such additional funding, if needed, will be available
on terms attractive to the Company or at all. Holders of the Series A Stock have
certain rights of first refusal until approximately June 30, 1999 with respect
to certain future equity financings of the Company. Any additional equity
financings may be dilutive to stockholders, and debt financing, if available,
may involve restrictive covenants. In addition, the number of shares of Common
Stock issuable upon the conversion of the Series A Stock is subject to
adjustment upon the occurrence of certain events. Such adjustments may be
dilutive to stockholders and may inhibit the Company's ability to consummate
additional equity financings.
EFFECTS OF DELISTING FROM NASDAQ SMALLCAP MARKET; LACK OF LIQUIDITY OF LOW
PRICED STOCKS.
If the Company fails to maintain the qualification for its Common Stock
to trade on the NASDAQ SmallCap Market, its securities could be subject to
delisting. The NASDAQ Stock Market recently announced increases in the
quantitative standards for maintenance of listings on The NASDAQ SmallCap
Market. The revised standards for continued listing, which became effective in
February 1998, include maintenance of any of (x) $2,000,000 of net
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<PAGE> 15
tangible assets, (y) $35,000,000 of market capitalization or (z) $500,000 of net
income for two of the last three years and a minimum bid price per share of
$1.00. Although the Company is currently in compliance with the new NASDAQ
SmallCap Market continued listing requirements, no assurances can be given that
the Company will be able to maintain such compliance in the future. In the event
the Company is unable to satisfy the continued listing requirements, trading, if
any, in the Common Stock would thereafter be conducted in the over-the-counter
markets in the so-called "pink sheets" or the National Association of Securities
Dealers' "Electronic Bulletin Board." Consequently, the liquidity of the
Company's Common Stock likely would be impaired, not only in the number of
shares which could be bought and sold, but also through delays in the timing of
the transactions, reduction in security analysts' and the news media's coverage,
if any, of the Company and lower prices for the Company's securities than might
otherwise prevail.
In addition, if the Common Stock were to become delisted from trading
on the NASDAQ SmallCap Market and the trading price of the Common Stock were
below $5.00 per share, trading in the Common Stock also would be subject to the
requirements of certain rules promulgated under the Exchange Act, which require
additional disclosures by broker-dealers in connection with any trades involving
a stock defined as a penny stock (generally, any non-NASDAQ equity security that
has a market price of less than $5.00 per share, subject to certain exceptions).
Such rules require the delivery, prior to any penny stock transaction, of a
disclosure schedule explaining the penny stock market and the risks associated
therewith, and impose various sales practice requirements on broker-dealers who
sell penny stock to persons other than established customers and accredited
investors (which are generally institutions). For these types of transactions,
the broker-dealer must make a special suitability determination for the purchase
and have received the purchaser's written consent to the transaction prior to
the sale. The additional burdens imposed upon broker-dealers by such
requirements may discourage broker-dealers from effecting transactions in Common
Stock, which could severely limit the market liquidity of Common Stock and the
ability of purchasers in this offering to sell their shares of Common Stock in
the secondary market.
POTENTIAL ADVERSE EFFECTS OF CONVERSION OF SERIES A STOCK; RISK OF SHORT SELLING
The Company cannot predict what effect, if any, the conversion of
Series A Stock into Common Stock and/or the exercise of the Warrants for Common
Stock and sale of such Common Stock into the public market, will have on the
market price for the Company's Common Stock. Offers or sales of significant
quantities of the Company's Common Stock, or the perception that such sales may
occur or have occurred, could adversely affect the market price. The conversion
feature of the Series A Stock operates such that the Selling Stockholder
receives more shares of the Common Stock upon conversion when the market price
of the Common Stock is lower. In the event the Selling Stockholders sell a large
number of shares of Common Stock into the public market over a short time, the
market price for the Common Stock could decline. Such a decline may make future
equity financings more difficult for the Company to obtain on an acceptable
basis, if at all.
The terms of the Purchase Agreement do not prohibit the holders of
Series A Stock from engaging in short sales. Sales of Common Stock by the
Selling Stockholders or others, whether short or long selling, could drive the
market price down, after which the holders of Series A Stock could convert
shares of Series A Stock into Common Stock at a lower price, then sell such
shares of Common Stock when the market price rises to a higher level. There is a
limit on the number of shares of Series A Stock which may be converted in a
given period subject to certain exceptions. See "Selling Stockholders."
LIMITED OPERATING HISTORY
Although the Company has been in existence since 1984, its current
operations have been in place only since its acquisition of 1st Tech and
DarkHorse in 1996. Accordingly, the Company is still in many respects subject to
certain risks and uncertainties inherent in a new enterprise, including limited
capital and other resources, reliance on key personnel, operating in a highly
competitive environment, inability to develop long-term relationships with its
customers, suppliers and lenders, lack of name recognition, higher overhead
costs, and difficulty in addressing unanticipated problems, delays and expenses.
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SIGNIFICANT CUSTOMER CONCENTRATION
A significant percentage of the Company's net sales are produced by a
relatively small number of customers. In fiscal 1997 and 1996, the ten largest
customers accounted for approximately 53.2% and 45.3% of net sales,
respectively. One customer, Tandy Corporation, accounted for 12.0% of total
sales in fiscal 1997, while no one customer accounted for more than 10% of total
sales in fiscal 1996. While the Company expects to continue to be dependent on a
relatively small number of customers for a significant percentage of its net
sales, there can be no assurance that any of the top ten customers in fiscal
1997 will continue to utilize the Company's products or services. Absent
replacement or other sales growth, the loss of any significant customer could
materially and adversely affect the Company's result of operations, business and
financial condition. The actual customers producing the sales are different
between the two periods, and the Company expects this type of variation in
volume of purchases from a particular customer to continue.
The Company in general has no firm long-term volume commitments from
its customers and generally enters into individual purchase orders and
agreements with non-binding forecasts. Customer purchase orders and forecasts
are subject to change, cancellation or delay with little or no consequence to
the customer. Therefore, the Company has experienced such changes and
cancellations and expects to continue to do so in the future. The replacement of
canceled, delayed or reduced purchase orders with new business cannot be
assured. The Company's business, financial condition and results of operations
will depend significantly on its ability to obtain purchase orders from existing
and new customers, upon the financial condition and success of its customers,
the success of customers' products and the general economy. Factors affecting
the industries of the Company's major customers could have a material adverse
effect on the Company's business, financial condition and results of operations.
PRODUCT CONCENTRATION; DEPENDENCE ON MEMORY MARKET
A substantial majority of the Company's net sales is derived from
memory products. The market for memory products is characterized by frequent
transitions in which products rapidly incorporate new features and performance
standards. A failure to develop products with required feature sets or
performance standards or a delay as short as a few months in bringing a new
product to market could significantly reduce the Company's net sales for a
substantial period, which would have a material adverse effect on the Company's
business, financial condition and results of operations.
The market for semiconductor memory devices has been cyclical. The
industry has experienced significant economic downturns at various times,
characterized by diminished product demand, accelerated erosion of average
selling prices and production over capacity. During fiscal 1997, there were
significant declines in DRAM and SRAM semiconductor prices. Since the fiscal
1997 year end, there have been continued declines in certain DRAM and SDRAM
semiconductor prices. Because approximately 50% of the Company's net sales are
attributable to the resale of semiconductor memory devices, future price
declines could have a material adverse effect on the Company's business,
financial condition and results of operations.
INTENSE COMPETITION; LIMITED BARRIERS TO ENTRY
The memory module and memory test equipment industries are intensely
competitive. Each of these markets includes a large number of competitive
companies, several of which have achieved a substantial market share. Certain of
the Company's competitors in each of these markets have substantially greater
financial, marketing, technical, distribution and other resources, greater name
recognition, lower cost structures and larger customer bases than the Company.
In the memory module market, the Company competes against semiconductor
manufacturers that maintain captive memory module production capabilities,
including Samsung and Micron Electronics, Inc. (a subsidiary of Micron
Technology, Inc.). The Company also competes with independent memory module
manufacturers, including Smart Modular Technologies, Inc. and Kingston
Technology, Inc. In the memory tester market, the Company competes primarily
with companies such as Hewlett-Packard, Inc. and Advantest, Inc. Competition for
the Company's CLASS business of manufacturing services includes SCI Systems,
Inc. and Avex Electronics, Inc. The Company faces competition from current and
prospective customers that evaluate the Company's capabilities against the
merits of manufacturing products internally. In some cases the Company's tester
customers represent direct competition to the Company's memory module business.
In addition, certain of the Company's competitors, such as Samsung, are
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<PAGE> 17
significant suppliers to the Company. These suppliers may have the ability to
manufacture competitive products at lower costs than the Company as a result of
their higher levels of integration. The Company also faces competition from new
and emerging companies that have recently entered or may in the future enter the
markets in which the Company participates.
The Company expects its competitors to continue to improve the
performance of their current products, to reduce their current product sales
prices and to introduce new products that may offer greater performance and
improved pricing, any of which could cause a decline in sales or loss of market
acceptance of the Company's products. There can be no assurance that
enhancements to or future generations of competitive products will not be
developed that offer better prices or technical performance features than the
Company's products. To remain competitive, the Company must continue to provide
technologically advanced products and manufacturing services, improve quality
levels, offer flexible delivery schedules, deliver finished products on a
reliable basis, reduce manufacturing and testing costs and compete favorably on
the basis of price. In addition, increased competitive pressure has led in the
past and may continue to lead to intensified price competition, resulting in
lower prices and gross margin, which could materially adversely affect the
Company's business, financial condition and results of operations. There can be
no assurance that the Company will be able to compete successfully in the
future.
In addition, barriers to entry in certain of the markets in which the
Company operates are limited, and there can be no assurance that existing or new
competitors will not develop products or provide services that are superior to
the Company's products or services or achieve greater market acceptance.
FLUCTUATIONS IN OPERATING RESULTS
The Company's results of operations and gross margin have fluctuated
significantly from period to period in the past and may in the future continue
to fluctuate significantly from period to period. Aside from fluctuations
typically resulting from the different products and customer mix associated with
acquisitions, the primary factors that have affected and may in the future
affect the Company's results of operations include the loss of a principal
customer or customers or the reduction in orders from a customer due to excess
product inventory accumulation by such customers, adverse changes in the mix of
products sold by the Company and the inability to procure required components.
Other factors that may affect the Company's results of operations in the future
include fluctuating market demand for and declines in the selling prices of the
Company's products, market acceptance of new products and enhanced versions of
the Company's products, delays in the introduction of new products and
enhancements to existing products, and manufacturing inefficiencies associated
with the startup of new product introductions. In addition, the Company's
operating results may be affected by the timing of new product announcements and
releases by the Company or its competitors, the timing of significant orders,
the ability to produce products in volume, delays, cancellations or
reschedulings of orders due to customer financial difficulties or other events,
inventory obsolescence, including the reduction in value of the Company's
inventories due to unexpected price declines, unexpected product returns, the
timing of expenditures in anticipation of increased sales, cyclicality in the
Company's targeted markets, and expenses associated with acquisitions. In
particular, declines in DRAM, SDRAM and SRAM semiconductor prices could affect
the valuation of the Company's inventory which could result in adverse changes
in the Company's business, financial condition and results of operations.
The Company's net sales and gross margin have varied and will continue
to vary significantly based on a variety of factors, including the mix of
products sold and the manufacturing services provided, the channels through
which the Company's products are sold, changes in product selling prices and
component costs, the level of manufacturing efficiencies achieved and pricing by
competitors. The selling prices of the Company's existing products have declined
in the past, and the Company expects that prices will continue to decline in the
future. In particular, during fiscal 1997 and 1996, the selling prices of the
Company's existing products declined due to significant declines in DRAM, SDRAM
and SRAM semiconductor prices. Moreover, since the fiscal 1997 year end,
declines in the prices of certain of the Company's existing products have
continued due to further declines in certain DRAM and SDRAM semiconductor
prices. Because a substantial portion of the Company's turnkey sales are
attributable to the resale of semiconductor devices, continued decline in the
prices of these components could have a material adverse effect on the Company's
net sales. Accordingly, the Company's ability to maintain or increase net sales
will be highly dependent upon its ability to increase unit sales volumes of
existing products and to introduce and sell new products in quantities
sufficient to compensate for the anticipated declines in selling prices.
Declining product selling prices may also
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<PAGE> 18
materially and adversely affect the Company's gross margin unless the Company is
able to reduce its cost per unit to offset declines in product selling prices.
There can be no assurance that the Company will be able to increase unit sales
volumes, introduce and sell new products or reduce its cost per unit. In
addition, the Company's business has in the past been subject to seasonality.
The Company expects that its business will experience more significant
seasonality as it expands its sales and marketing efforts in Europe.
Sales of the Company's individual products and product lines toward the
end of a product's life cycle typically are characterized by steep declines in
sales, pricing and gross margin, the precise timing of which may be difficult to
predict. The Company could experience unexpected reductions in sales of products
as customers anticipate new product purchases. In addition, to the extent that
the Company manufactures products in anticipation of future demand that does not
materialize, or in the event a customer cancels outstanding orders during a
period of either declining product selling prices or decreasing demand, the
Company could experience an unanticipated decrease in sales of products. These
factors could give rise to charges for obsolete or excess inventory, returns of
products by distributors, or substantial price protection charges or discounts.
In the past, the Company has had to write-down and write-off excess or obsolete
inventory. To the extent that the Company is unsuccessful in managing product
transitions, its business, financial condition and results of operations could
be materially and adversely affected.
The need for continued significant expenditures for capital equipment
purchases, research and development and ongoing customer service and support,
among other factors, will make it difficult for the Company to reduce its
operating expenses in any particular period if the Company's expectations for
net sales for that period are not met. The Company has significantly increased
its expense levels to support its growth, and there can be no assurance that the
Company will maintain its current level of net sales or rate of growth for any
period in the future. The Company believes that period-to-period comparisons of
the Company's financial results are not necessarily meaningful and should not be
relied upon as indications of future performance. Due to the foregoing factors,
it is likely that in some future period the Company's operating results will be
below the expectations of public market analysts or investors. In such event,
the market price of the Company's securities would be materially and adversely
affected.
DEPENDENCE ON SEMICONDUCTOR, COMPUTER, TELECOMMUNICATIONS AND NETWORKING
INDUSTRIES
The Company may experience substantial period-to-period fluctuations in
future operating results due to factors affecting the semiconductor, computer,
telecommunications and networking industries. From time to time, each of these
industries has experienced downturns, often in connection with, or in
anticipation of, declines in general economic conditions. A decline or
significant shortfall in growth in any one of these industries could have a
material adverse impact on the demand for the Company's products and therefore a
material adverse effect on the Company's business, financial condition and
results of operations. Moreover, changes in end-user demand for the products
sold by any individual OEM customer can have a rapid and exaggerated effect on
demand for the Company's products from that customer in any given period,
particularly in the event that the OEM customer has accumulated excess
inventories of products purchased from the Company. There can be no assurance
that the Company's net sales and results of operations will not be materially
and adversely affected in the future due to changes in demand from individual
customers or cyclical changes in the semiconductor, computer,
telecommunications, networking or other industries utilizing the Company's
products.
UNCERTAINTY REGARDING PROTECTION OF PROPRIETARY RIGHTS
In the semiconductor, computer, telecommunications and networking
industries, it is typical for companies to receive notices from time to time
alleging infringement of patents, copyrights or other intellectual property
rights of others. While there is currently no pending intellectual property
litigation involving the Company, the Company may from time to time be notified
of claims that it may be infringing patents, copyrights or other intellectual
property rights owned by third parties. There can be no assurance that third
parties will not in the future pursue claims against the Company with respect to
the alleged infringement of patents, copyrights or other intellectual property
rights. In addition, litigation may be necessary to protect the Company's
intellectual property rights and trade secrets, to determine the validity and
scope of the proprietary rights of others or to defend against third party
claims of invalidity. Any litigation could result in substantial costs and
diversion of resources and could have a material adverse effect on the Company's
business, financial condition and results of operations.
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<PAGE> 19
There can be no assurance that infringement, invalidity, right to use
or ownership claims by third parties or claims for indemnification resulting
from infringement claims will not be asserted in the future. The failure to
obtain a license under a patent or intellectual property right from a third
party for technology used by the Company could cause the Company to incur
substantial liabilities and to suspend the manufacture of the products utilizing
the intellectual property. In addition, should the Company decide to litigate
such claims, such litigation could be extremely expensive and time consuming and
could materially and adversely affect the Company's business, financial
condition and results of operations, regardless of the outcome of the
litigation.
The Company attempts to protect its intellectual property rights
through a variety of measures, including non-disclosure agreements, trademarks,
trade secrets and to a lesser extent, patents and copyrights. There can be no
assurance, however, that such measures will provide adequate protection for the
Company's trade secrets or other proprietary information, that disputes with
respect to the ownership of its intellectual property rights will not arise,
that the Company's trade secrets or proprietary technology will not otherwise
become known or be independently developed by competitors or that the Company
can otherwise meaningfully protect its intellectual property rights.
RISKS ASSOCIATED WITH ACQUISITIONS
As part of its business strategy, the Company expects to make
acquisitions of, or significant investments in, businesses that offer
complementary products and technologies. Any such future acquisitions or
investments would expose the Company to the risks commonly encountered in
acquisitions of businesses. Such risks include, among others, difficulty of
assimilating the operations, information systems and personnel of the acquired
businesses, the potential disruption of the Company's ongoing business, the
inability of management to maximize the financial and strategic position of the
Company through the successful incorporation of acquired employees and
customers, the maintenance of uniform standards, controls, procedures and
policies and the impairment of relationships with employees and customers as a
result of any integration of new management personnel. There can be no assurance
that any potential acquisition will be consummated or, if consummated, that it
will not have a material adverse effect on the Company's business, financial
condition and results of operations.
VOLATILITY OF STOCK PRICES
There has been a history of significant volatility in the market prices
of the common stock of technology companies, including the Common Stock of the
Company, and it is likely that the market price of the Company's Common Stock
will continue to be subject to significant fluctuations. Factors such as the
timing and market acceptance of new product introductions by the Company, demand
for products of the Company's customers, the introduction of new products by the
Company's competitors, variations in quarterly operating results, changes in
securities analysts' recommendations regarding the Company's Common Stock,
developments in the technology industry and general economic conditions may have
a significant impact on the market price of the Company's Common Stock. In
addition, the equity markets in recent years have experienced significant price
and volume fluctuations that have affected the market prices of technology
companies and that have often been unrelated to the operating performance of
such companies.
SHARES ELIGIBLE FOR FUTURE SALE.
Sales of shares of Common Stock by existing stockholders under Rule 144
of the Securities Act, or through the exercise of warrants and/or outstanding
vested options, could have an adverse effect on the price of the Common Stock.
As of June 30, 1998, there were approximately 16,000,000 shares of Common Stock
freely tradeable in the public market, and, in addition to the 5,353,374 shares
of Common Stock offered hereby, there were (i) approximately 5,000,000 shares of
Common Stock eligible for sale in the public market upon compliance with the
volume and other limitations contained in Rule 144 of the Securities Act; (ii)
outstanding options to acquire up to approximately 4,032,500 shares of Common
Stock under the Company's stock option plans; (iii) outstanding options to
acquire up to approximately 139,000 additional shares of Common Stock under
option agreements entered into outside of such plans; and (iv) outstanding
warrants to acquire up to approximately 89,000 shares of Common Stock.
-18-
<PAGE> 20
AUTHORIZATION OF PREFERRED STOCK.
The Company's Articles of Incorporation authorize the issuance of
preferred stock with designations, rights and preferences determined from time
to time by its Board of Directors. Accordingly, the Board of Directors is
empowered, without stockholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights that could adversely affect the
voting power or other rights of the holders of the Common Stock. In the event of
issuance, the preferred stock could be used, under certain circumstances, as a
method of discouraging, delaying or preventing a change in control of the
Company. Although the Company has no present intention to issue any additional
shares of its preferred stock, there can be no assurance that it will not do so
in the future.
MANAGEMENT OF GROWTH; EXPANSION OF OPERATIONS
The Company has significantly expanded its operations over the last
several years. This growth has resulted in a significant increase in
responsibility for existing management which has placed, and may continue to
place, a significant strain on the Company's limited personnel and management,
manufacturing and other resources. The Company's ability to manage the recent
and any possible future growth will require a significant expansion of its
manufacturing capacity, accounting and other internal management systems and the
implementation of a variety of procedures and controls. There can be no
assurance that significant problems in these areas will not occur. Any failure
to expand these systems and implement such procedures and controls in an
efficient manner and at a pace consistent with the Company's business could have
a material adverse effect on the Company's business, financial condition and
results of operations.
In connection with the Company's acquisitions and growth, the Company's
operating expenses have increased significantly, and the Company anticipates
that operating expenses will continue to increase in absolute dollars in the
future. In particular, in order to continue to provide quality products and
customer service and to meet anticipated demands of its customers, the Company
will be required to continue to increase staffing and other expenses, including
expenditures on capital equipment, sales and marketing. Should the Company
increase its expenditures in anticipation of a future level of sales that does
not materialize, the Company's business, financial condition and results of
operations would be materially and adversely affected. Certain customers have
required and may continue to require rapid increases in production and
accelerated delivery schedules which have placed and may continue to place a
significant burden on the Company's resources. In order to achieve anticipated
sales levels and profitability, the Company will continue to be required to
manage its assets and operations efficiently. In addition, should the Company
continue to expand geographically, it may experience certain inefficiencies from
the management of geographically dispersed facilities.
The Company anticipates that future demand for its products will
require expansion of its current operations and the addition of new production
lines in the future. It also anticipates that it will be required to move to a
larger facility. Should the Company's relocation to this facility be delayed or
should the Company experience any unexpected disruptions associated with this
transition, the Company's results of operations could be materially and
adversely affected. There can be no assurance that any such expansion will be
completed successfully.
RAPID TECHNOLOGICAL CHANGE
The semiconductor, computer, telecommunications and networking
industries are subject to rapid technological change, short product life cycles,
frequent new product introductions and enhancements, changes in end-user
requirements and evolving industry standards. The Company's ability to be
competitive in these markets will depend in significant part upon its ability to
invest significant amounts of resources for research and development efforts, to
successfully develop, introduce and sell new products and enhancements on a
timely and cost-effective basis and to respond to changing customer requirements
that meet evolving industry standards. For example, the semiconductor memory
market is currently transitioning from fast page mode and EDO memory to SDRAM.
The success of the Company in developing new and enhanced products will depend
upon a variety of factors, including integration of the various elements of its
complex technology, timely and efficient completion of product design, timely
and efficient implementation of manufacturing and assembly processes,
availability of production capacity, achievement of acceptable manufacturing
yields and product performance, quality and reliability. The Company has
experienced, and may in the future experience, delays from time to time in the
development and introduction of new
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<PAGE> 21
products. Moreover, there can be no assurance that the Company will be
successful in selecting, developing, manufacturing and marketing new products or
enhancements. There can be no assurance that defects or errors will not be found
in the Company's products after commencement of commercial shipments, which
could result in delayed market acceptance of such products. The inability of the
Company to introduce new products or enhancements that contribute to sales could
have a material adverse effect on the Company's business, financial condition
and results of operations.
DEPENDENCE ON SOLE OR LIMITED SOURCES OF SUPPLY
The Company is dependent on certain suppliers, including limited and
sole source suppliers, to provide key components used in the Company's products.
In particular, the Company is dependent in significant part upon certain limited
or sole source suppliers for critical components in the Company's memory module
and tester products. The electronics industry has experienced in the past, and
may experience in the future, shortages in semiconductor devices, including
DRAM, SDRAM and SRAM memory. The Company has experienced and may continue to
experience delays in component deliveries and quality problems with respect to
certain component deliveries which have caused and could in the future cause
delays in product shipments and have required and could in the future require
the redesign of certain products. The Company generally has no written
agreements with its suppliers. There can be no assurance that the Company will
receive adequate component supplies on a timely basis in the future. The
inability to continue to obtain sufficient supplies of components as required,
or to develop alternative sources if required, could cause delays, disruptions
or reductions in product shipments or require product redesigns which could
damage relationships with current or prospective customers, could increase costs
and/or prices and could have a material adverse effect on the Company's
business, financial condition and results of operations.
DEPENDENCE ON KEY PERSONNEL
The Company's future operating results depend in significant part upon
the continued contributions of its key technical and senior management
personnel, many of whom would be difficult to replace. The Company's future
operating results also depend in significant part upon its ability to attract,
train and retain qualified management, manufacturing and quality assurance,
engineering, marketing, sales and support personnel. The Company is actively
recruiting such personnel. However, competition for such personnel is intense,
and there can be no assurance that the Company will be successful in attracting,
training or retaining such personnel now or in the future. There may be only a
limited number of persons with the requisite skills to serve in these positions,
and it may be increasingly difficult for the Company to hire such persons over
time. The loss of any key employee, the failure of any key employee to perform
in his or her current position, the Company's inability to attract, train and
retain skilled employees as needed or the inability of the officers and key
employees of the Company to expand, train and manage the Company's employee base
could materially and adversely affect the Company's business, financial
condition and results of operations.
DEPENDENCE ON AVAILABILITY, RECRUITMENT AND RETENTION OF TECHNICAL PERSONNEL
The Company depends upon its ability to attract, hire and retain
technical personnel who possess the skills and experience necessary to meet the
Company's own personnel needs and the technical requirements of its clients.
Competition for individuals with proven technical skills is intense. The
computer industry in general experiences a high rate of attrition of such
personnel. The Company competes for such individuals with competitors, providers
of outsourcing services, temporary personnel agencies, computer systems
consultants, customers and potential customers. Many large competitors have
announced extensive campaigns to hire additional technical personnel.
Competition for quality technical personnel has continued to intensify,
resulting in increased personnel costs for many computer component
manufacturers. Failure to attract and retain sufficient technical personnel
would have a material adverse effect on the Company's business, operating
results and financial condition.
INTERNATIONAL SALES
International sales accounted for 3.5% and 2.7% of net sales in fiscal
1997 and 1996, respectively. The Company anticipates that international sales
will increase in future periods and will account for an increasing portion of
net sales. In February 1998, the Company's wholly owned subsidiary, Tanisys
(Europe) Limited, commenced operations in Scotland. As a result, an increasing
portion of the Company's sales will be subject to certain risks,
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<PAGE> 22
including changes in regulatory requirements, tariffs and other barriers, timing
and availability of export licenses, political and economic instability,
difficulties in accounts receivable collections, natural disasters, difficulties
in staffing and managing foreign subsidiary and branch operations, difficulties
in managing distributors, difficulties in obtaining governmental approvals for
telecommunications and other products, foreign currency exchange fluctuations,
the burden of complying with a wide variety of complex foreign laws and treaties
and potentially adverse tax consequences. The Company is also subject to the
risks associated with the imposition of legislation and regulations relating to
the import or export of high technology products. The Company cannot predict
whether quotas, duties, taxes or other charges or restrictions upon the
importation or exportation of the Company's products will be implemented by the
U.S. or other countries. Because sales of the Company's products have been
denominated to date primarily in U.S. dollars, increases in the value of the
U.S. dollar could increase the price of the Company's products so that they
become relatively more expensive to customers in the local currency of a
particular country, leading to a reduction in sales and profitability in that
country. Future international activity may result in increased foreign currency
denominated sales. Gains and losses on the conversion to U.S. dollars of
accounts receivable, accounts payable and other monetary assets and liabilities
arising from international operations may contribute to fluctuations in the
Company's results of operations. Some of the Company's customer purchase orders
and agreements are governed by foreign laws, which may differ significantly from
U.S. laws. Therefore, the Company may be limited in its ability to enforce its
rights under such agreements and to collect damages, if awarded. There can be no
assurance that any of these factors will not have a material adverse effect on
the Company's business, financial condition and results of operations.
NO ASSURANCE OF PRODUCT QUALITY, PERFORMANCE AND RELIABILITY
The Company expects that its customers will continue to establish
demanding specifications for quality, performance, reliability and delivery. In
the past, the Company has experienced quality problems resulting in product
returns and cancellations. To date, the Company's quality problems have not had
a significant effect on the Company's results of operations and the known
quality problems have been or are in the process of being remedied. There can be
no assurance that the problems will not occur in the future with respect to
quality, performance, reliability and delivery of the Company's products. If
such problems occur, the Company could experience increased costs, delays in or
cancellations or reschedulings of orders or shipments, delays in collecting
accounts receivable and increases in product returns and discounts, any of which
could have a material adverse effect on the Company's business, financial
condition and results of operations.
DEPENDENCE UPON INDEPENDENT SHIPPING COMPANIES.
The Company relies heavily on arrangements with independent shipping
companies for the delivery of its products. In order to meet customer demand,
products are shipped from suppliers through independent shipping companies.
Currently, Federal Express ("FedEx") and Airborne Express ("Airborne") deliver
the substantial majority of the Company's products to its customers. The
termination of the Company's relationship with FedEx and/or Airborne, or the
failure of one or more other independent shipping companies to deliver products
from suppliers to the Company or products from the Company to its customers
could have a material adverse effect on the Company's business, financial
condition or results of operations. For instance, another employee work stoppage
at United Parcel Service or an employee work stoppage or slow-down at one or
more independent shipping company could materially impair the shipping company's
ability to perform the services required by the Company. There can be no
assurance that the services of these independent shipping companies will
continue to be available to the Company on terms as favorable as those currently
available or that these companies will choose or be able to perform the required
shipping services for the Company.
RISKS CONCERNING YEAR 2000
The Year 2000 problem concerns the inability of certain computer
systems to appropriately recognize the year 2000 when the last two digits of the
year are entered in the date field. The Company has assessed its Year 2000
requirements and believes the resources required to make its major computer
systems and programs Year 2000 compliant are immaterial. The Company, however,
could be adversely affected by the Year 2000 problem if computer systems of
third parties such as banks, suppliers and others with which the Company does
business fail to address the Year 2000 problem successfully. There can be no
assurance that the Year 2000 problem, if experienced by such third parties, will
not have a material adverse effect upon the Company's business, operating
results and financial condition.
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<PAGE> 23
Many companies may need to modify or upgrade their information systems
to address the Year 2000 problem. The effects of this issue and of the efforts
by other companies to address it are unclear. The Company believes that the
purchasing patterns of customers and prospective customers might be affected by
Year 2000 issues. Many companies are expending significant resources to correct
their current software systems for Year 2000 compliance. These expenditures
might result in reduced funds available to purchase services and products such
as those offered by the Company.
NONPAYMENT OF DIVIDENDS.
The Company has never declared or paid dividends on Common Stock and
does not anticipate paying dividends on Common Stock at any time in the
foreseeable future. The terms of certain of the Company's loan agreements and
the Certificate of Designation for Series A Stock restrict the payment of
dividends on Common Stock.
ENVIRONMENTAL REGULATION
The Company's operations and manufacturing processes are subject to
certain federal, state, local and foreign environmental protection laws and
regulations. Public attention has increasingly been focused on the environmental
impact of manufacturing operations that use hazardous materials or generate
hazardous wastes, and environmental laws and regulations may become more
stringent over time. There can be no assurance that failure to comply with
either present or future regulations, or to obtain all necessary permits
required under such regulations, would not subject the Company to significant
compliance expenses, production suspensions or delay, restrictions on expansion
at its present or future locations, the acquisition of costly equipment or other
liabilities.
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<PAGE> 24
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus contains certain "forward-looking statements" within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Specifically, all statements other than statements of historical facts
included in this report regarding the Company's financial position, business
strategy and plans and objectives of management of the Company for future
operations are forward-looking statements. These forward-looking statements are
based on the beliefs of the Company's management, as well as assumptions made by
and information currently available to the Company's management. When used in
this report, the words "anticipate," "believe," "estimate," "expect" and
"intend" and words or phrases of similar import, as they relate to the Company
or Company management, are intended to identify forward-looking statements. Such
statements reflect the current view of the Company with respect to future events
and are subject to certain risks, uncertainties and assumptions related to
certain factors including, without limitation, competitive factors, general
economic conditions, customer relations, relationships with vendors, the
interest rate environment, governmental regulation and supervision, product
introductions and acceptance, technological change, changes in industry
practices, one-time events and other factors described herein ("cautionary
statements"). Although the Company believes that its expectations are
reasonable, it can give no assurance that such expectations will prove to be
correct. Based upon changing conditions, should any one or more of these risks
or uncertainties materialize, or should any underlying assumptions prove
incorrect, actual results may vary materially from those described herein as
anticipated, believed, estimated, expected or intended. All subsequent written
and oral forward-looking statements attributable to the Company or persons
acting on its behalf are expressly qualified in their entirety by the applicable
cautionary statements. The Company does not intend to update these
forward-looking statements.
USE OF PROCEEDS
The Shares to be sold pursuant to the Prospectus are beneficially owned
by stockholders (the "Selling Stockholders") of the Company. The Company will
not receive any of the proceeds from the sale of the Shares. See "Selling
Stockholders."
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<PAGE> 25
SELLING STOCKHOLDERS
The following table sets forth the name of the Selling Stockholders
and, as of August 5, 1998, the beneficial ownership of Common Stock held by the
Selling Stockholders, immediately prior to and upon completion of this offering.
The Shares are being registered hereby on behalf of the Selling Stockholders,
who may offer them for resale. See "Plan of Distribution." All information as to
beneficial ownership has been furnished by or on behalf of the Selling
Stockholders. The number of Shares that may be actually sold by the Selling
Stockholders will be determined by each Selling Stockholder, and may depend upon
a number of factors, including, among other things, the market price of the
Common Stock. Because each Selling Stockholder may offer all, some or none of
the Shares that it holds, and because the offering contemplated by this
Prospectus is currently not being underwritten, no estimate can be given as to
the number of Shares that will be held by each Selling Stockholder upon or prior
to the termination of this offering. See "Plan of Distribution." Except as
otherwise specified, each Selling Stockholder has sole voting and investment
power over the shares listed. Except as set forth below, no Selling Stockholder
has had a material relationship with the Company or any of its predecessors or
affiliates within the past three years.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
BEFORE THE OFFERING AFTER THE OFFERING(1)
------------------------- -----------------------
SHARES
NUMBER PERCENTAGE REGISTERED NUMBER PERCENTAGE
NAME OF SHARES OF CLASS(2) HEREBY OF SHARES OF CLASS
---- --------- ----------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C>
KA Investments LDC(3) 1,091,037(3) 4.999% 5,286,708(4) 0 0
Midori Capital Corporation(5) 53,958 * 53,958 0 0
Hoth Incorporated(5) 4,375 * 4,375 0 0
Randy Stein(5) 8,333 * 8,333 0 0
=====================================================================================================
TOTAL 1,157,703 5.32% 5,353,374 0 0
</TABLE>
* Represents less than 1%
(1) Assumes all shares of Common Stock offered hereby are sold.
(2) Based on 20,729,714 shares of Common Stock outstanding as of August 12,
1998.
(3) Includes shares of Common Stock issuable upon (i) the conversion of
Series A Stock and the payment of dividends to be made on September 30,
1998 on Series A Stock in the form of shares of Common Stock, in each
case at an assumed conversion price of $1.63 and (ii) exercise of the
Warrants issued to such Selling Stockholder. Because the number of
shares of Common Stock issuable upon conversion of Series A Stock and
as payment of dividends thereon is dependent in part upon the market
price of the Common Stock prior to conversion, the actual number of
shares of Common Stock that will be issued in respect of such
conversions or dividend payments, and consequently the number of shares
of Common Stock that will be beneficially owned by such Selling
Stockholder, will fluctuate daily and cannot be determined at this
time. Such Selling Stockholder has, however, contractually agreed to
restrict its ability to convert shares of Series A Stock (and receive
shares of Common Stock in payment of dividends thereon) to the extent
that the number of shares of Common Stock held by it and its affiliates
after such conversion exceeds 4.999% of the then issued and outstanding
shares of Common Stock following such conversion. Due to this
restriction, the number of shares of Common Stock beneficially owned by
such Selling Stockholder is equal to 4.999% of the total shares of
Common Stock outstanding. In the event the Company achieves certain
revenue thresholds, the number of shares of Series A Stock that may be
converted by such Selling Stockholder each month will be limited.
(4) Includes shares of Common Stock reflected herein as beneficially owned
by such Selling Stockholder. Because the number of shares of Common
Stock issuable upon conversion of Series A Stock and as payment
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<PAGE> 26
of dividends thereon is dependent in part upon the market price of the
Common Stock prior to a conversion, the actual number of shares of
Common Stock that will be issued in respect of such conversions or
dividend payments and, consequently, offered for sale under this
Registration Statement, cannot be determined at this time. In order to
provide a cushion for any such fluctuations, the Company has
contractually agreed to include herein 200% of the number of shares of
Common Stock as would be issuable upon conversion in full of Series A
Stock (plus payment of dividends for two years in the form of shares of
Common Stock), assuming such conversion occurred on August 13, 1998,
plus the number of shares of Common Stock as would be issuable upon
exercise in full of the Warrants issued to the Selling Stockholders.
(5) Includes shares of Common Stock issuable upon exercise of a warrant
dated June 30, 1998 granted by the Company to such Selling Stockholder.
Pursuant to a Convertible Preferred Stock Purchase Agreement dated
June 30, 1998 (the "Purchase Agreement") between the Company and KA Investments
LDC, a Cayman Islands corporation ("KA Investments"), the Company issued 400
shares of its 5% Series A Convertible Preferred Stock, par value $1.00 per share
("Series A Stock"), for an aggregate purchase price of $4,000,000. The Series A
Stock is convertible into shares of Common Stock pursuant to a formula based
upon the Conversion Price, which shall be equal to the lower of either (a) $2.31
per share or (b) 80% of the average of the three lowest closing bid prices per
share of Common Stock for the 30 trading days immediately prior to conversion
(as more fully described in the Articles of Incorporation of the Company).
Dividends accrue on the Series A Stock at a rate of 5% per annum, and may be
paid in shares of Common Stock, but must be paid in cash upon the occurrence of
certain events. The Company is required to redeem certain of the shares of
Series A Stock upon the occurrence of certain triggering events. In addition,
the Company granted warrants (the "Warrants") to KA Investments, Midori Capital
Corporation ("Midori"), Hoth Incorporated ("Hoth") and Randy Stein ("Stein") (KA
Investments, Midori, Hoth and Stein collectively referred to herein as the
"Selling Stockholders") to purchase an aggregate of approximately 200,000 shares
of Common Stock at a purchase price of $3.00 per share (subject to adjustment as
provided by the terms of the Warrants). The Warrants may be exercised on or
before June 30, 2002. Pursuant to a Registration Rights Agreement between the
Company and KA Investments dated June 30, 1998, the Company granted the Selling
Stockholders certain registration rights related to the shares of Common Stock
issuable upon conversion of the Series A Stock and upon the exercise of the
Warrants. The Registration Statement to which this Prospectus is a part has been
filed pursuant to the terms of such Registration Rights Agreement and registers
the resale by the Selling Stockholders of such shares of Common Stock issuable
upon conversion of the Series A Stock and upon exercise of the Warrants. Each of
the Purchase Agreement, the Registration Rights Agreement, a form of the
Warrants and the Articles of Incorporation of the Company, as amended
(containing the terms of the Series A Stock) have been filed as exhibits to the
Registration Statement to which this Prospectus is a part.
PLAN OF DISTRIBUTION
The Company is registering the Shares on behalf of the Selling
Stockholders. The Company will bear all costs, expenses and fees incident to
their registration, including certain fees and disbursements of counsel to the
Selling Stockholders. Brokerage commissions, if any, attributable to the sale of
Shares will be borne by the Selling Stockholders (or their pledgees, donees,
transferees or other successors-in-interest).
The Company will receive no portion of the proceeds of the sale of the
Shares offered hereby. However, certain of the shares of Common Stock offered
hereby are issuable in the future upon the exercise of Warrants and the Company
will receive the exercise prices payable on any exercise of such Warrants. There
can be no assurance that all or any part of the Warrants will be exercised.
All or a portion of the Shares may be sold from time to time by or for
the account of the Selling Stockholders, their pledgees, donees, transferees or
other successors-in-interest in the over-the-counter market, on the NASDAQ
SmallCap Market or otherwise in privately negotiated transactions or otherwise,
at fixed prices that may be changed, at market prices prevailing at the time of
sale, at prices related to such market prices or at negotiated prices. The
Shares may be sold by any one or more of the following methods, without
limitation: (a) block trade(s) in which the broker or dealer so engaged will
attempt to sell the Shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; (c) an exchange distribution in accordance with the rules of
The
-25-
<PAGE> 27
Nasdaq SmallCap Market or applicable exchange; (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; (e)
privately negotiated transactions; (f) short sales; (g) a combination of any
such methods of sale; and (h) any other method permitted pursuant to applicable
law.
From time to time the Selling Stockholders may engage in short sales,
short sales against the box, puts and calls and other transactions in securities
of the Company or derivatives thereof, and may sell and deliver the Shares in
connection therewith or in settlement of securities loans. If the Selling
Stockholders engage in such transactions, the applicable conversion price may be
affected. From time to time, the Selling Stockholders may pledge their Shares
pursuant to the margin provisions of their respective customer agreements with
their respective brokers. Upon a default by any such Selling Stockholder, such
broker(s) may offer and sell the pledged Shares from time to time.
In effecting sales, brokers and dealers engaged by any of the Selling
Stockholders may arrange for other brokers or dealers to participate in such
sales. Brokers or dealers may receive commissions or discounts from the Selling
Stockholders (or, if any such broker-dealer acts as agent for the purchaser of
such sales, from such purchaser) in amounts to be negotiated, which are not
expected to exceed those customary in the types of transactions involved.
Broker-dealers may agree with the Selling Stockholders to sell a specified
number of such Shares at a stipulated price per share, and, to the extent such
broker-dealer is unable to do so acting as agent for a Selling Stockholder, to
purchase as principal any unsold Shares at the price required to fulfill the
broker-dealer commitment to the Selling Stockholders. Broker-dealers who acquire
Shares as principal may thereafter resell such Shares from time to time in
transactions (which may involve block transactions and sales to and through
other broker-dealers, including transactions of the nature described above) in
the over-the-counter market or otherwise at prices and on terms prevailing at
the time of sale, at prices related to the then-current market price or in
negotiated transactions and, in connection with such resales, may pay to or
receive from the purchasers of such Shares commissions as described above. The
Selling Stockholders also may sell the Shares in accordance with Rule 144 under
the Securities Act, rather than pursuant to this Prospectus. The Selling
Stockholders will act independently of the Company in making decisions with
respect to the timing, manner and size of each sale. To the Company's knowledge,
no Selling Stockholder has entered into any agreement, understanding or
arrangement with any underwriter or broker-dealer regarding the sale of the
Shares, nor does the Company know the identity of the brokers or market makers,
if any, which will participate in the offering. The Selling Stockholders and any
broker-dealers or agents that participate with the Selling Stockholders in sales
of the Shares may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
Shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Because the Selling Stockholders each may be
deemed to be an "underwriter" within the meaning of Section 2(11) of the
Securities Act, the Selling Stockholders will be subject to prospectus delivery
requirements under the Securities Act. Furthermore, the Selling Stockholders,
any broker or dealer and any "affiliated purchasers" will be subject to the
applicable provisions of the Exchange Act and the Securities Act and the rules
and regulations thereunder, including, without limitation, Regulation M under
the Exchange Act, which provisions may limit the timing of the purchases and
sales of the Company's securities by any Selling Stockholder, any broker or
dealer and any "affiliated purchasers."
The Company has agreed to exercise its best efforts to keep the
Registration Statement to which this Prospectus is a part continuously effective
for a maximum three years.
The Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act. The Company has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
the Company by Fulbright & Jaworski L.L.P., San Antonio, Texas.
-26-
<PAGE> 28
EXPERTS
The consolidated financial statements included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1997 incorporated by
reference in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated herein in reliance upon the authority of said firm
as experts in giving said reports.
-27-
<PAGE> 29
================================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information ........................................... 2
Incorporation of Certain Documents .............................. 2
The Company ..................................................... 3
The Business .................................................... 4
Risk Factors .................................................... 13
Disclosure Regarding
Forward-Looking Statements................................... 23
Use of Proceeds ................................................. 23
Selling Stockholders............................................. 24
Plan of Distribution ............................................ 25
Legal Matters ................................................... 26
Experts ......................................................... 27
</TABLE>
================================================================================
================================================================================
5,353,374 SHARES
TANISYS TECHNOLOGY, INC.
COMMON STOCK
----------
P R O S P E C T U S
AUGUST 13, 1998
----------
================================================================================
<PAGE> 30
PART II
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with this offering are:
<TABLE>
<S> <C>
SEC registration fee* $ 3,504
Legal fees and expenses* 20,000
Miscellaneous* 1,000
Total* $ 24,320
--------------------
* Estimated
</TABLE>
The Company has agreed to pay all the costs and expenses of this
offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Company shall indemnify any and
all persons who may serve or who have served at any time as directors or
officers, or who at the request of the Board of Directors of the Company may
serve or at any time have served as directors or officers of another corporation
in which the Company at such time owned or may own shares of stock or of which
it was or may be a creditor, and their respective heirs, administrators,
successors and assigns, against any and all expenses, including amounts paid
upon judgments, counsel fees and amounts paid in settlement (before or after
suit is commenced), actually and necessarily incurred by such persons in
connection with the defense or settlement of any claim, action, suit or
proceeding in which they, or any of them, are made parties, or a party, or which
may be asserted against them or any of them by reason of being or having been
directors or officers or a director or officer of the Company, or of such other
corporation, except in relation to matters as to which any such director or
officer or former director or officer or person shall be adjudged in any action,
suit or proceeding to be liable for his own negligence or misconduct in the
performance of his duty. Such indemnification shall be in addition to any other
rights to which those indemnified may be entitled under any law, bylaw,
amendment, vote of stockholders or otherwise.
LIMITATION OF LIABILITY
Article 12 of the Articles of Incorporation provides that no director
shall be personally liable to the Company or any stockholder for monetary
damages for breach of fiduciary duty as a director, except for any matter in
respect of which such director shall be liable under Section 17-16-834 of the
Wyoming Business Company Act (the "WBCA") or any amendment thereto or successor
provision thereto, or shall be liable by reason that, in addition to any and all
other requirements for such liability, he (i) shall have breached his duty of
loyalty to the Company or its stockholders, (ii) shall not have acted in good
faith or, in failing to act, shall not have acted in good faith, (iii) shall
have acted in a manner involving intentional misconduct or a knowing violation
of law or, in failing to act, shall have acted in a manner involving intentional
misconduct or a knowing violation of law, (iv) shall have derived an improper
personal benefit or (v) shall have voted for or assented to a distribution made
in violation of Section 17-16-640 of the WBCA or the Articles of Incorporation
of the Company if it is established that he did not perform his duties in
compliance with Section 17-16-830 of the WBCA.
This provision may have the effect of reducing the likelihood of
derivative litigation against directors and may discourage or deter stockholders
or management from bringing a lawsuit against directors for breach of their duty
of care, even though such an action, if successful, might otherwise have
benefitted the Company and its stockholders. However, this provision, together
with the provision described above that requires the Company to indemnify its
officers and directors against certain liabilities, is intended to enable the
Company to attract qualified persons to serve as directors who might otherwise
be reluctant to do so.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 as Amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Commission,
such indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
II-1
<PAGE> 31
ITEM 16. EXHIBITS.
Exhibit No. Exhibit
- ----------- -------
3.1* Articles of Incorporation of Tanisys Technology, Inc., as
amended
4.1* Registration Rights Agreement dated June 30, 1998 between
Tanisys Technology, Inc. and KA Investments LDC
5* Opinion of Fulbright & Jaworski L.L.P. regarding legality
10.1* Convertible Preferred Stock Purchase Agreement dated June 30,
1998, between Tanisys Technology, Inc. and KA Investments LDC
10.2* Form of Warrant to purchase Common Stock granted by Tanisys
Technology, Inc. to each of KA Investments LDC, Midori
Capital Corporation, Hoth Incorporated and Randy Stein
23.1* Consent of Fulbright & Jaworski L.L.P. (contained in Exhibit 5)
23.2* Consent of Arthur Andersen LLP
25* Power of Attorney (included on signature page)
* filed herewith
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that, insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the
II-2
<PAGE> 32
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), the Registrant certifies that it has reasonable grounds
to believe that it meets all the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Austin and State of Texas
the 7th day of August, 1998.
TANISYS TECHNOLOGY, INC.
By: /s/ Charles T. Comiso
----------------------------------------
Charles T. Comiso, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Charles T. Comiso or Joe O. Davis, or
either of them, his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
President, Chief Executive August 7, 1998
/s/ Charles T. Comiso Officer and Director
- ------------------------------- (Principal Executive Officer)
Charles T. Comiso
Senior Vice President, August 7, 1998
/s/ Joe O. Davis Chief Financial Officer and Secretary
- ------------------------------- (Principal Financial Officer)
Joe O. Davis
Corporate Controller August 7, 1998
/s/ Donald R. Turner (Principal Accounting Officer)
- ------------------------------
Donald R. Turner
Chairman of the Board August 7, 1998
/s/ Parris H. Holmes, Jr.
- ------------------------------
Parris H. Holmes, Jr.
Director August 7, 1998
/s/ Gordon H. Matthews
- ------------------------------
Gordon H. Matthews
Director August 7, 1998
/s/ Gary W. Pankonien
- ------------------------------
Gary W. Pankonien
Director August 7, 1998
/s/ Theodore W. Van Duyn
- ------------------------------
Theodore W. Van Duyn
</TABLE>
II-4
<PAGE> 34
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- ----------- -------
<S> <C>
3.1* Articles of Incorporation of Tanisys Technology, Inc., as
amended
4.1* Registration Rights Agreement dated June 30, 1998 between
Tanisys Technology, Inc. and KA Investments LDC
5* Opinion of Fulbright & Jaworski L.L.P. regarding legality
10.1* Convertible Preferred Stock Purchase Agreement dated June 30,
1998, between Tanisys Technology, Inc. and KA Investments LDC
10.2* Form of Warrant to purchase Common Stock granted by Tanisys
Technology, Inc. to each of KA Investments LDC, Midori
Capital Corporation, Hoth Incorporated and Randy Stein
23.1* Consent of Fulbright & Jaworski L.L.P. (contained in Exhibit 5)
23.2* Consent of Arthur Andersen LLP
25* Power of Attorney (included on signature page)
</TABLE>
* filed herewith
II-5
<PAGE> 1
EXHIBIT 3.1
STATE OF WYOMING
[SEAL]
OFFICE OF THE
SECRETARY OF STATE
United States of America,
State of Wyoming ss.
I, KATHY KARPAN, Secretary of State of the State of Wyoming, do hereby certify
. . . . ROSETTA TECHNOLOGIES INC. . . .
a corporation originally organized under the laws of the state or nation of
British Columbia, Canada, did on June 30, 1993 apply for a Certificate of
Registration and filed Articles of Continuance in the office of the Secretary of
State of Wyoming.
I FURTHER CERTIFY that
. . . . ROSETTA TECHNOLOGIES INC. . . .
has renounced its original state of incorporation, and is now incorporated under
the laws of the state of Wyoming, in accordance with W.S. 17-16-1710.
IN TESTIMONY WHEREOF, I have hereunto set my
hand and affixed the Great Seal of the State of Wyoming.
Done at Cheyenne, the Capital, this thirtieth day of
June A.D. 19 93.
Kathy Karpan
--------------------------------------------
Secretary of State
By: /s/ Sharon Cochran
--------------------------------------------
[SEAL]
<PAGE> 2
Secretary of State
State of Wyoming
The Capitol
Cheyenne, WY
82002-0020
STATE OF WYOMING
APPLICATION FOR
CERTIFICATE OF REGISTRATION
AND ARTICLES OF CONTINUANCE
Pursuant to W.S. 17-16-1710 of the Wyoming Business Corporation Act, the
undersigned hereby submits the following Articles of Continuance:
1. The name of the Corporation is:
ROSETTA TECHNOLOGIES INC.
2. It is incorporated under the laws of the Province of British Columbia.
3. The date of its incorporation is January 27, 1984 and the period of its
duration is perpetual.
4. The address of its principal office in the state under the laws of which
it is incorporated is:
265 - 25th Street, West Vancouver, B.C., V7V 4H9
5. The mailing address where correspondence and annual reports can be sent
is:
12th Floor, 1190 Hornby Street, Vancouver, B.C., V6Z 2L3
6. The physical address of its registered office in Wyoming and name of its
registered agent at that address is:
DRAY MADISON & THOMSON P.C., Attorneys at Law, 204 East 22nd Street,
Cheyenne, Wyoming, 82001 - 3799
(The agent must be an individual who resides in this state. a domestic
corporation or a not-for-profit domestic corporation or a foreign
corporation or not-for-profit foreign corporation authorized to transact
business in this state)
7. The purpose or purposes of the corporation which it proposes to pursue
in the transaction of business in this state.
Developing, manufacturing and marketing computer hardware and software.
<PAGE> 3
8. The names and respective addresses of its officers and directors are:
<TABLE>
<CAPTION>
OFFICE NAME ADDRESS
<S> <C> <C>
Director/CEO GERALD F. BOUDREAU 849 Grenada Lane
President/Chairman Foster City, California
94404-3803
Director MARK NUSSBAUM 6081 Forsyth Crescent
Richmond, B.C.
V7C 2C4
Director THOMAS M. TAYLOR House 4, Brunswick
Beach, North Vancouver,
B.C. V7R 3T1
</TABLE>
9. The aggregate number of shares or other ownership units which it has the
authority to issue, itemized by classes, par value of shares, shares
without par value and series, if any, within a class is:
Number of Shares Class Series Par Value per Share
25,000,000 Common Without par value
10. The aggregate number of issued shares or other ownership units itemized
by classes, par value of shares, shares without par value and series, if
any, within a class is:
4,964,325 Common shares without par value
11. The Corporation accepts the Constitution of this state in compliance
with the requirements of article 10, section 5 of the Wyoming
constitution.
Dated June 30, 1993.
By: /s/ J. Stephen Barley
---------------------------------------
Title: Secretary
<PAGE> 4
PROVINCE OF BRITISH COLUMBIA)
CITY OF VANCOUVER)
I, Gretel MacLaren, Notary Public, do hereby certify that on this 29th day of
June, 1993, personally appeared before me J. Stephen Barley, who, being by me
first duly sworn, declared that he/she signed the foregoing document as
Secretary of the corporation, and that the statements therein contained are
true.
In witness whereof, I have hereunto set my hand and seal this 30th day of June,
1993.
/s/ Gretel MacLaren
---------------------------------------
(Notarial Seal) Notary Public
My Commission Expires: N/A
NOTES:
1. FILING FEE: $90.00.
2. The application shall be executed by the corporation by its president or
other officer, director, trustee, manager or person performing functions
equivalent to those of a president and who is authorized to execute the
application on behalf of the corporation and shall be verified by the
officer signing the corporation.
3. The application shall be accompanied by one (1) exact or conformed copy.
4. The following documents must accompany the application:
The articles of continuance shall be accompanied by a written consent to
appointment manually signed by the registered agent.
*A copy of the Articles of Incorporation and all amendments currently
certified (within the last six (6) months) by the proper officer of the
state or nation of incorporation.
Copy of the corporate resolution authorizing continuance of the
corporation in Wyoming.
<PAGE> 5
2
CONSENT TO APPOINTMENT BY REGISTERED AGENT
1. DRAY, MADISON & THOMSON, P.C. voluntarily consents to serve as the
registered agent for Rosetta Technologies Inc. on the date shown below;
2. DRAY, MADISON & THOMSON, P.C. knows and understands the duties of a
registered agent as set forth in the 1989 Wyoming Business Corporation
Act:
DRAY, MADISON & THOMSON, P.C.
By: /s/ Gregory C. Cyekman
-----------------------------------
204 East 22nd Street
Cheyenne, WY 82001-3799
Phone: 307/634-8891
Dated: June 30, 1993
<PAGE> 6
*********
BY-LAWS
*********
ROSETTA TECHNOLOGIES INC.
ARTICLE 1
OFFICES
1.01 The registered office shall be in the City of Cheyenne, State of
Wyoming.
1.02 The corporation may also have offices at such other places both within
and without the State of Wyoming as the board of directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
2.01 All meetings of the stockholders for the election of directors shall be
held at such place as may be fixed from time to time by the board of directors,
either within or without the State of Wyoming as shall be designated from time
to time by the board of directors and stated in the notice of the meeting.
Meetings of the stockholders for any other purpose may be held at such time and
place, within or without the State of Wyoming, as shall be stated in the notice
of meeting or in a duly executed waiver of notice thereof.
2.02 Annual meetings of stockholders, commencing with the year 1994 shall be
held on the third Thursday of March, if not a legal holiday, and if a legal
holiday, then on the next secular day following, at 10:00 a.m., or at such other
date and time as shall be designated from time to time by the board of directors
and stated in the notice of the meeting, at which they shall elect, if a quorum
is present, by a plurality vote a board of directors, and transact such other
business as may properly be brought before the meeting.
2.03 Written notice of the annual meeting stating the place, date and hour of
the meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) nor more than sixty (60) days before the date of the
meeting.
2.04 The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list
<PAGE> 7
2
shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
2.05 Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute or by the certificate of incorporation,
may be called by the president and shall be called by the president or secretary
at the request in writing of a majority of the board of directors, or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
2.06 Written notice of a special meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called, shall
be given not less than ten (10) nor more than sixty (60) days before the date of
the meeting, to each stockholder entitled to vote at such meeting.
2.07 Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
2.08 The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation.
2.09 When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or presented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the statutes or of the certificate of
incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question.
2.10 Unless otherwise provided in the certificate of incorporation each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted after eleven (11) months
from its date, unless the proxy appointment form provides for a longer period.
2.11 Unless otherwise provided in the certificate of incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a
<PAGE> 8
3
meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing.
ARTICLE III
DIRECTORS
3.01 The number of directors which shall constitute the whole board shall not
be less than three nor more than fifteen. The first board shall consist of three
directors. Thereafter, within the limits above specified, the number of
directors shall be determined by resolution of the board of directors or by the
stockholders at the annual meeting. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
3.02 Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining director, and
the directors so chosen shall hold office until the next annual election and
until their successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an election of directors
may be held in the manner provided by the Wyoming Business Corporation Act.
3.03 The business of the corporation shall be managed by or under the
direction of its board of directors which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or
these by-laws directed or required to be exercised or done by the stockholders.
Meetings of the Board of Directors
3.04 The board of directors of the corporation may hold meetings, both
regular and special, either within or without the State of Wyoming.
3.05 The first meeting of each newly elected board of directors shall be held
at such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting, provided a quorum
shall be present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
board of directors, or as shall be specified in a written waiver signed by all
of the directors.
3.06 Regular meetings of the board of directors may be held without notice at
such time and at such place as shall from time to time be determined by the
board.
<PAGE> 9
4
3.07 Special meetings of the board may be called by the president on two
days' notice to each director, either personally or by mail or by telegram;
special meetings shall be called by the president or secretary in like manner
and on like notice on the written request of two directors unless the board
consists of only one director; in which case special meetings shall be called by
the president or secretary in like manner and on like notice on the written
request of the sole director.
3.08 At all meetings of the board a majority of directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
3.09 Unless otherwise restricted by the certificate of incorporation or these
by-laws, any action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken without a meeting,
if all members of the board or committee,, as the case may be, consent thereto
in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
3.10 Unless otherwise restricted by the certificate of incorporation or these
by-laws, members of the board of directors, or any committee designated by the
board of directors, may participate in a meeting of the board of directors, or
any committee designated by the board of directors, may participate in a meeting
of the board of directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Committees of Directors
3.11 The board of directors may, by resolution passed by a majority of the
whole board of directors, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors, shall have and may exercise all the powers and authority of
the board of directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock or to
<PAGE> 10
5
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
3.12 Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required.
Compensation of Directors
3.13 Unless otherwise represented by the certificate of incorporation or
these by-laws, the board of directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed sum
for attendance at each meeting of the board of directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Removal of Directors
3.14 Unless otherwise restricted by the certificate of incorporation or these
by-laws, any director or the entire board of directors may be removed, with or
without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
NOTICES
4.01 Whenever, under the provisions of the statutes or of the certificate of
incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram..
4.02 Whenever any notice is required to be given under the provisions of the
statutes or of the certificate of incorporation or of these by-laws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE V
OFFICERS
5.01 The officers of the corporation shall be chosen by the board of
directors and shall be a chairman, a president, a vice-president, a secretary
and a treasurer. The board of directors may also choose additional
vice-presidents, and one or more assistant secretaries and assistant treasurers.
<PAGE> 11
6
Any number of offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
5.02 The board of directors at its first meeting after such annual meeting
of stockholders shall choose a chairman, a president, one or more
vice-presidents, a secretary and treasurer. The chairman and president may be
the same person.
5.03 The board of directors may appoint such other officers and agents as it
shall deem necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the board.
5.04 The salaries of all officers and agents of the corporation shall be
fixed by the board of directors.
5.05 The officers of the corporation shall hold office until their successors
are chosen and qualify. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
The Chairman
5.06 The chairman shall be the chief executive officer of the corporation,
shall preside at all meetings of the stockholders and the board of directors,
shall have general and active management of the business of the corporation and
shall see that all orders and resolutions of the board of directors are carried
into effect.
5.07 He shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
The President
5.08 The President shall be the chief operating officer of the corporation.
In the absence of the chairman or in the event of his inability or refusal to
act, the president shall perform the duties of the chairman, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
chairman. The president shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
The Vice-President
5.09 In the absence of the president or in the event of his inability or
refusal to act, the vice-president (or in the event there be more than one
vice-president, the vice-presidents in order designated by the directors, or in
the absence of any designation, then in order of their election) shall perform
the duties of the president, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the president. The vice-presidents
shall perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
<PAGE> 12
7
The Secretary and the Assistant Secretary
5.10 The secretary shall attend all meetings of the board of directors and
all meetings of the stockholders and record all the proceedings of the meetings
of the corporation and of the board of directors in a book to be kept for the
purpose and shall perform like duties for the standing committees when required.
He shall give, or cause to be given, notice of all meetings of the stockholders
and special meetings of the board of directors and shall perform such other
duties as may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested to
by his signature or by the signature of such assistant secretary. The board of
directors may give general authority to any officer to affix the seal of the
corporation and to attest to the affixing by his signature.
5.11 The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the board of directors (or if there be no
such determination, then in the order of their election) shall, in the absence
of the secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
The Treasurer and the Assistant Treasurer
5.12 The treasurer shall be the chief financial officer of the corporation
and shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the corporation and shall deposit all monies and other valuable effects in the
name and to the credit of the corporation in such depositories as may be
designated by the board of directors.
5.13 He shall disburse the funds of the corporation as may be ordered by the
board of directors, taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its regular meeting, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation.
5.14 If required by the board of directors, he shall give the corporation a
bond (which shall be renewed every six years) in such sum and with such surety
or sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
5.15 The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
<PAGE> 13
8
ARTICLE VI
CERTIFICATES FOR SHARES
6.01 The shares of the corporation shall be represented by a certificate or
shall be uncertified. Certificates shall be signed by, or in the name of the
corporation by, the chairman or vice chairman of the board of directors, or the
president or a vice-president and the treasurer or an assistant treasurer, or
the secretary or an assistant secretary of the corporation.
6.02 Upon the face or back of each stock certificate issued to represent any
partly paid shares, or upon the books and records of the corporation in the case
of uncertificated partly paid shares, shall be set forth the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
The transfer of any newly issued but less than fully paid shares shall be
restricted pursuant to written agreement between such shareholders and the
corporation, and such restriction shall be stated conspicuously upon the face or
back of each such stock certificate.
6.03 If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative participating option or other special rights of each
class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class of series of stock, provided that, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
6.04 Within a reasonable time after the issuance or transfer of
uncertificated stock, the corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to the Wyoming Business Corporation Act or a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
6.05 Any of or all the signatures on a certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
<PAGE> 14
9
Lost Certificates
6.06 The board of directors may direct a new certificate or certificates or
uncertificated shares to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates or uncertificated shares, the board
of directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Transfer of Stock
6.07 Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be cancelled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
Fixing Record Date
6.08 In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof ,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange or stock or for the purpose of any other lawful action,
the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the board of directors and which record date: (1) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the board of
directors; and (3) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (1) the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business of the day next preceding the day
of which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting when no
<PAGE> 15
10
prior action of the board of directors is required by law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation in accordance with
applicable law, or, if prior action by the board of directors is required bylaw,
shall be at the close of business on the day on which the board of directors
adopts the resolution taking such prior action; and (3) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the board of directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
Registered Stockholders
6.09 The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notices thereof, except as otherwise provided by the laws of Wyoming.
ARTICLE VII
GENERAL PROVISIONS
Dividends
7.01 Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the
board of directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property, or in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
7.02 Before payment of any dividend, there may be set aside out of any funds
of the corporation available for dividends such sum or sums as the directors
from time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conductive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Annual Statement
7.03 The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
<PAGE> 16
11
Checks
7.04 All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the board
of directors may from time to time designate.
Fiscal Year
7.05 The fiscal year of the corporation shall be fixed by resolution of
the board of directors.
Seal
7.06 The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Wyoming". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Indemnification
7.07 The corporation shall indemnify and advance expenses to any and all
persons who may serve or who have served at any time as directors or officers,
or who at the request of the board of directors of the corporation may serve or
at any time have served as directors or officers of another corporation in which
the corporation at such time owned or may own shares of stock or of which it was
or may be a creditor, and their respective heirs, administrators, successors,
and assigns, against any and all expenses, including amounts paid upon
judgments, counsel fees, and amounts paid in settlement (before or after suit is
commenced), actually and necessarily incurred by such persons in connection with
the defense or settlement of any claim, action, suit or proceeding in which
they, or any of them, are made parties, or a party, or which may be asserted
against them or any of them, by reason of being or having been directors or
officers or a director or officer of the corporation, or of such other
corporation, except in relation to matters as to which any such director or
officer or former director or officer or person shall be adjudged in any action,
suit, or proceeding to be liable for his own negligence or misconduct in the
performance of his duty. Such indemnification shall be in addition to any other
rights to which those indemnified may be entitled under any law, by-law,
amendment, vote of stockholders, or otherwise.
ARTICLE VIII
AMENDMENTS
8.01 These by-laws may be altered, amended or repealed or new by-laws may be
adopted by the stockholders or by the board of directors, when such power is
conferred upon the board of directors by the certificate of incorporation at any
regular meeting of the stockholders or of the board of directors or at any
special meeting of the stockholders or of the board of directors if notice of
such alteration, amendment, repeal of or adoption of new by-laws be contained in
the notice of such special meeting. If the power
<PAGE> 17
12
to adopt, amend or repeal by-laws is conferred upon the board of directors by
the certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
<PAGE> 18
[FILED
JUL 11 94 292707
Wyoming
Secretary of State]
ARTICLES OF AMENDMENT TO ARTICLES OF CONTINUANCE
Rosetta Technologies Inc.
Pursuant to W.S. Section 17-16-1710(e) (1994), a corporation's
previously filed Articles of Continuance are deemed to be the articles of
incorporation of the continued corporation. Pursuant to W.S. Section 17-16-1006
(1994), Rosetta Technologies Inc. submits these Articles of Amendment to its
Articles of Continuance.
I. NAME
The name of the corporation is Rosetta Technologies Inc.
II. TEXT OF AMENDMENT
The resolution approved by the shareholders reads:
"UPON MOTION duly made and seconded, IT WAS RESOLVED THAT the Company's
name be changed from its current name to "TeraLogic, Inc." or to such
other name as may be acceptable to the Vancouver Stock Exchange and the
Board of Directors and the Board of Directors file Articles of
Amendment to the Articles of Continuance with the Secretary of State of
Wyoming."
III. SHARES
The amendment does not change the share structure of the corporation.
IV. VOTE
The corporation has a single class of common shares, of which 6,495,325
are outstanding, and of which 6,495,325 were eligible to vote.
4,221,927 shares voted in favour of the above resolution.
TANISYS TECHNOLOGY, INC.
By: /s/ Mark C. Holliday
--------------------------------
Chairman, President and C.E.O.
By: /s/ James English
--------------------------------
C.F.O.
<PAGE> 19
[FILED
APR 28 95 300088
Wyoming
Secretary of State]
ARTICLES OF AMENDMENT
1. The name of the corporation is: Tanisys Technology, Inc.
2. Article 9 is amended as follows ("Amendment No. 1"):
The aggregate number of shares or other ownership units which it has the
authority to issue, itemized by classes, par value of shares, shares
without par value and series, if any, within a class is:
<TABLE>
<CAPTION>
Number of Shares Class Par Value per Share
---------------- ----- -------------------
<S> <C> <C>
50,000,000 Common No par value
10,000,000 Preferred $1.00
</TABLE>
To the fullest extent permitted by law, the board of directors shall
have the authority, by resolution, to create and issue such series of
preferred stock and to fix with respect to any such series the number of
shares of preferred stock comprising such series and the powers,
designations, preferences and rights (and the qualifications,
limitations and restrictions thereof) of the shares of such series.
3. Article 12 is hereby added as follows ("Amendment No. 2"):
12. No director shall be personally liable to the Corporation or any
shareholder for monetary damages for breach of fiduciary duty as
a director, except for any matter in respect of which such
director shall be liable under Section 17-16-834 of the Wyoming
Business Corporation Act or any amendment thereto or successor
provision thereto or shall be liable by reason that, in addition
to any and all other requirements for such liability, he (i)
shall have breached his duty of loyalty to the Corporation or
its shareholders, (ii) shall not have acted in good faith or, in
failing to act, shall not have acted in good faith, (iii) shall
have acted in a manner involving intentional misconduct or a
knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing
violation of law, (iv) shall have derived an improper personal
benefit, or (v) shall have voted for or assented to a
distribution made in violation of Section 17-16-640 of the
Wyoming Business Corporation Act or the articles of
incorporation of the Company
<PAGE> 20
if it is established that he did not perform his duties in
compliance with Section 17-16-830 of the Wyoming Business
Corporation Act.
4. Amendment No. 1 and Amendment No. 2 were adopted on March 28, 1995 by
the shareholders.
5. The designation, number of outstanding shares, number of votes entitled
to be cast by each voting group entitled to vote separately on each of
the amendments were as follows:
<TABLE>
<CAPTION>
Number of Votes Entitled
Designation Outstanding Shares To be Cast
----------- ------------------ --------------
<S> <C> <C>
Common 8,113,325 8,113,325
</TABLE>
The number of votes of each voting group indisputably represented at the
meeting:
<TABLE>
<CAPTION>
Number of
Shares
Indisputably
Designation Represented
----------- -----------
<S> <C>
Common 5,760,915
</TABLE>
6. The total number of votes cast for and against each of the amendments by
each voting group entitled to vote separately on each of the amendments:
<TABLE>
<CAPTION>
Designation Votes For Votes Against
----------- --------- -------------
<S> <C> <C> <C>
Amendment No. 1 Common 3,771,220 245,928
Amendment No. 2 Common 5,597,716 155,239
</TABLE>
7. The number of votes cast for each of the amendments by each voting group
was sufficient for approval by that voting group.
Signed: /s/ Mark C. Holliday
-----------------------------
President
Date: 4/27/95
2
<PAGE> 21
[FILED
APR 15 96 309459
Wyoming
Secretary of State]
ARTICLES OF AMENDMENT
1. The name of the corporation is: Tanisys Technology, Inc.
2. Article 13 is hereby added as follows:
13. The members of the Board of Directors shall be classified, with
respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible, as shall
be provided in the manner specified in the corporation's bylaws,
one class to hold office initially for a term expiring at the
Annual General Meeting of Shareholders to be held in 1997,
another to hold office initially for a term expiring at the
Annual General Meeting of Shareholders to be held in 1998, and
another to hold office initially for a term expiring at the
Annual General Meeting of Shareholders to be held in 1999, with
the members of each new class to hold office until their
successors have been duly elected and have qualified. At each
Annual General Meeting of Shareholders of the corporation, the
successors to the class of directors whose term expires at the
meeting shall be elected to hold office for a term expiring at
the Annual General Meeting held in the third year following the
year of their election.
3. This amendment was adopted on March 21, 1996 by the shareholders.
4. The designation, number of outstanding shares, number of votes entitled
to be cast by each voting group entitled to vote separately on the
amendment were as follows:
<TABLE>
<CAPTION>
Number of Votes Entitled
Designation Outstanding Shares To be Cast
----------- ------------------ --------------
<S> <C> <C>
Common 10,106,037 10,106,037
</TABLE>
<PAGE> 22
The number of votes of each voting group indisputably represented at the
meeting:
<TABLE>
<CAPTION>
Number of
Shares
Indisputably
Designation Represented
----------- -----------
<S> <C>
Common 8,925,604
</TABLE>
5. The total number of votes cast for and against the amendment by each
voting group entitled to vote separately on the amendment:
<TABLE>
<CAPTION>
Designation Votes For Votes Against
----------- --------- -------------
<S> <C> <C>
Common 6,317,607 100,325
</TABLE>
6. The number of votes cast for the amendment by each voting group was
sufficient for approval by that voting group.
Signed: /s/ Mark C. Holliday
-------------------------------
President
Date: 4/9/96
2
<PAGE> 23
ARTICLES OF AMENDMENT
1. The name of the corporation is: Tanisys Technology, Inc.
2. Article 9 is amended in its entirety as follows:
A. The aggregate number of shares or other ownership units which it
has the authority to issue, itemized by classes, par value of
shares, shares without par value and series, if any, within a
class is:
<TABLE>
<CAPTION>
Number of Shares Class Par Value per Share
---------------- ----- -------------------
<S> <C> <C>
50,000,000 Common No par value
10,000,000 Preferred $1.00
</TABLE>
To the fullest extent permitted by law, the board of directors
shall have the authority, by resolution, to create and issue
such series of preferred stock and to fix with respect to any
such series the number of shares of preferred stock comprising
such series and the powers, designations, preferences and rights
(and the qualifications, limitations and restrictions thereof)
of the shares of such series.
B. The corporation is authorized to issue up to 400 shares of
Preferred Stock, par value $1.00 per share, to be known as 5%
Series A Convertible Preferred Stock (such Preferred Stock
hereinafter being referred to as the "Series A Preferred
Stock"). The designations, powers, preferences and relative,
participating, optional and other special rights, and
qualifications, limitations and restrictions thereof, with
respect to the Series A Preferred Stock are as set forth in
Exhibit "A" attached hereto and are incorporated herein for all
purposes.
3. The text of the amendment was approved by resolution of the Board of
Directors of the corporation duly adopted by unanimous written consent
on June 29, 1998.
Signed: /s/ Charles T. Comiso
----------------------------
Charles T. Comiso, President and CEO
Date: June 29, 1998
<PAGE> 24
EXHIBIT A
TERMS OF PREFERRED STOCK
Section 1. Designation, Amount and Par Value. The series of preferred
stock shall be designated as 5% Series A Convertible Preferred Stock (the
"Preferred Stock") and the number of shares so designated shall be 400 (which
shall not be subject to increase without the consent of the holders of the
Preferred Stock (each, a "Holder" and collectively, the "Holders")); Each share
of Preferred Stock shall have a par value of $1.00 and a stated value of $10,000
(the "Stated Value").
Section 2. Dividends.
(a) Holders shall be entitled to receive, when and as declared by the
Board of Directors out of funds legally available therefor, and the Company
shall pay, cumulative dividends at the rate per share (as a percentage of the
Stated Value per share) equal to 5% per annum, payable on a quarterly basis on
March 31, June 30, September 30 and December 31 of each year during the term
hereof (each a "Dividend Payment Date"), commencing on September 30, 1998, in
cash or shares of Common Stock (as defined in Section 8) at, subject to the
terms and conditions set forth herein, the option of the Company. Dividends on
the Preferred Stock shall be calculated on the basis of a 360-day year, shall
accrue daily commencing on the Original Issue Date (as defined in Section 8),
and shall be deemed to accrue from such date whether or not earned or declared
and whether or not there are profits, surplus or other funds of the Company
legally available for the payment of dividends. Any dividends not paid on any
Dividend Payment Date shall continue to accrue and shall be due and payable upon
conversion of the Preferred Stock. A party that holds shares of Preferred Stock
on a Dividend Payment Date will be entitled to receive such dividend payment and
any other accrued and unpaid dividends which accrued prior to such Dividend
Payment Date, without regard to any sale or disposition of such Preferred Stock
subsequent to the applicable record date. All overdue accrued and unpaid
dividends and other amounts due herewith shall entail a late fee at the rate of
15% per annum (to accrue daily, from the date such dividend is due hereunder
through and including the date of payment). Except as otherwise provided herein,
if at any time the Company pays less than the total amount of dividends then
accrued on account of the Preferred Stock, such payment shall be distributed
ratably among the Holders based upon the number of shares held by each Holder.
Payment of dividends on the Preferred Stock is further subject to the provisions
of Section 5(c)(i). The Company shall provide the Holders notice of its
intention to pay dividends in cash or shares of Common Stock not less than 10
Trading Days prior to any Dividend Payment Date for so long as shares of
Preferred Stock are outstanding. If dividends are paid in shares of Common
Stock, the number of shares of Common Stock issuable on account of such dividend
shall equal the cash amount of such dividend on such Dividend Payment Date
divided by the Conversion Price (as defined below) on such date.
<PAGE> 25
(b) Notwithstanding anything to the contrary contained herein, the
Company may not issue shares of Common Stock in payment of dividends on the
Preferred Stock (and must deliver cash in respect thereof) if:
(i) the number of shares of Common Stock at the time authorized,
unissued and unreserved for all purposes is insufficient to pay such dividends
in shares of Common Stock;
(ii) such shares of Common Stock are not registered for resale
pursuant to an effective registration statement that names the recipient of such
dividend as a selling stockholder thereunder and may not be sold without volume
restrictions pursuant to Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), as determined by counsel to the Company
pursuant to a written opinion letter, addressed to the Company's transfer agent
in the form and substance acceptable to the Holders and such transfer agent;
(iii) the Common Stock is not then listed or quoted on the Nasdaq
SmallCap Market ("NASDAQ") or on the New York Stock Exchange, American Stock
Exchange or the Nasdaq National Market (each, a "Subsequent Market");
(iv) the Company has failed to timely satisfy its conversion
obligations hereunder; or
(v) the issuance of such shares of Common Stock would result in the
recipient thereof beneficially owning, as determined in accordance with Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), more than 4.999% of the then issued and outstanding shares of
Common Stock.
(c) So long as any Preferred Stock shall remain outstanding, neither the
Company nor any subsidiary thereof shall redeem, purchase or otherwise acquire
directly or indirectly any Junior Securities (as defined in Section 8), nor
shall the Company directly or indirectly pay or declare any dividend or make any
distribution (other than a dividend or distribution described in Section 5)
upon, nor shall any distribution be made in respect of, any Junior Securities,
nor shall any monies be set aside for or applied to the purchase or redemption
(through a sinking fund or otherwise) of any Junior Securities or shares pari
passu with the Preferred Stock, except for repurchases effected by the Company
on the open market, pursuant to a direct stock purchase plan.
Section 3. Voting Rights. Except as otherwise provided herein and as
otherwise required by law, the Preferred Stock shall have no voting rights.
However, so long as any shares of Preferred Stock are outstanding, the Company
shall not and shall cause its subsidiaries not to, without the affirmative vote
of the Holders of all of the shares of the Preferred Stock then outstanding, (a)
alter or change adversely the powers, preferences or rights given to the
Preferred Stock, (b) alter or amend this Certificate of Designation, (c)
authorize or create any class of stock ranking as to dividends or distribution
of assets upon a Liquidation (as defined in Section 4) senior to or otherwise
pari passu with or senior to the Preferred Stock, except for any series of
Preferred Stock issued and sold in accordance with the Purchase Agreement, (d)
amend its Certificate of Incorporation, bylaws or other charter documents so as
to affect adversely any rights of any Holders,
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<PAGE> 26
(e) increase the authorized number of shares of Preferred Stock, or (f) enter
into any agreement with respect to the foregoing.
Section 4. Liquidation. Upon any liquidation, dissolution or winding-up
of the Company, whether voluntary or involuntary (a "Liquidation"), the Holders
shall be entitled to receive out of the assets of the Company, whether such
assets are capital or surplus, for each share of Preferred Stock an amount equal
to the Stated Value plus all due but unpaid dividends per share, whether
declared or not, before any distribution or payment shall be made to the holders
of any Junior Securities, and if the assets of the Company shall be insufficient
to pay in full such amounts, then the entire assets to be distributed to the
Holders shall be distributed among the Holders ratably in accordance with the
respective amounts that would be payable on such shares if all amounts payable
thereon were paid in full. A sale, conveyance or disposition of all or
substantially all of the assets of the Company or the effectuation by the
Company of a transaction or series of related transactions in which more than
33% of the voting power of the Company is disposed of, or a consolidation or
merger of the Company with or into any other company or companies shall not be
treated as a Liquidation, but instead shall be subject to the provisions of
Section 5. The Company shall mail written notice of any such Liquidation, not
less than 45 days prior to the payment date stated therein, to each record
Holder.
Section 5. Conversion.
(a)(i) Conversions at Option of Holder. Each share of Preferred Stock
shall be convertible into shares of Common Stock (subject to the limitations set
forth in Section 5(a)(ii) hereof) at the Conversion Ratio (as defined in Section
8) at the option of the Holder, at any time and from time to time, from and
after the 90th day following the Original Issue Date (the "Initial Conversion
Date"). From and after the Initial Conversion Date until the 240th day following
the Original Issue Date, the Holders may convert each month on a cumulative
basis such number of shares of Preferred Stock as is equal to or less than the
Initial Conversion Amount (for example, if no conversion is made prior to the
3rd month after the Initial Conversion Date, then the Holders may convert 3
times the Initial Conversion Amount on the first day of the 3rd month after the
Initial Conversion Date) so long as the total revenues generated by the Company
as reported on the Company's Form 10-Q filed with the Securities and Exchange
Commission (the "Commission") for (i) the quarter ended June 30, 1998 are equal
to or in excess of $6,000,000, (ii) the quarter ended September 30, 1998 are
equal to or in excess of $9,000,000 and (iii) the quarter ended December 31,
1998 are equal to or less than $9,000,000 (the revenue amounts set forth in
clauses (i), (ii) and (iii) called, the "Revenue Targets"). Notwithstanding the
foregoing, the conversion limitations set forth in this Section shall
immediately cease to apply, and the Holders shall be entitled to convert all or
any of the Preferred Stock from time to time thereafter, if the Company fails to
timely file with the Commission a Form 10-Q that meets the Revenue Target
applicable to such Form 10-Q. Holders shall effect conversions by surrendering
the certificate or certificates representing the shares of Preferred Stock to be
converted to the Company, together with the form of conversion notice attached
hereto as Exhibit 1 (a "Conversion Notice"). Each Conversion Notice shall
specify the number of shares of Preferred Stock to be converted and the date on
which such conversion is to be effected, which date may not be prior to the date
the Holder delivers such Conversion Notice by facsimile (the "Conversion Date").
If no Conversion Date is specified in a Conversion Notice, the
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<PAGE> 27
Conversion Date shall be the date that the Conversion Notice is deemed delivered
hereunder. If the Holder is converting less than all shares of Preferred Stock
represented by the certificate or certificates tendered by the Holder with the
Conversion Notice, or if a conversion hereunder cannot be effected in full for
any reason, the Company shall promptly deliver to such Holder (in the manner and
within the time set forth in Section 5(b)) a certificate for such number of
shares as have not been converted.
(ii) Certain Conversion Restrictions.
(A) The Holder agrees not to convert shares of Preferred Stock to
the extent such conversion would result in the Holder beneficially owning (as
determined in accordance with Section 13(d) of the Exchange Act and the rules
thereunder) in excess of 4.999% of the then issued and outstanding shares of
Common Stock, including shares issuable upon conversion of the shares of
Preferred Stock held by such Holder after application of this Section. To the
extent that the limitation contained in this Section applies, the determination
of whether shares of Preferred Stock are convertible (in relation to other
securities owned by a Holder) and of which shares of Preferred Stock are
convertible shall be in the sole discretion of the Holder, and the submission of
shares of Preferred Stock for conversion shall be deemed to be the Holder's
determination of whether such shares of Preferred Stock are convertible (in
relation to other securities owned by the Holder) and of which portion of such
shares of Preferred Stock are convertible, in each case subject to such
aggregate percentage limitation, and the Company shall have no obligation to
verify or confirm the accuracy of such determination. Nothing contained herein
shall be deemed to restrict the right of the Holder to convert shares of
Preferred Stock at such time as such conversion will not violate the provisions
of this Section. The provisions of this Section may be waived by a Holder (but
only as to itself and not to any other Holder) upon not less than 75 days prior
notice to the Company (in which case, the Holder shall make such filings with
the Commission, including under Rule 13D or 13G, as are required by applicable
law), and the provisions of this Section shall continue to apply until such 75th
day (or later, if stated in the notice of waiver). Other Holders shall be
unaffected by any such waiver.
(B) If on any Conversion Date (1) the Common Stock is listed for
trading on the NASDAQ or the Nasdaq National Market, (2) the Conversion Price
then in effect is such that the aggregate number of shares of Common Stock that
would then be issuable upon conversion in full of all then outstanding shares of
Preferred Stock, together with any shares of the Common Stock previously issued
upon conversion of the shares of Preferred Stock and as payment of dividends
thereon, would equal or exceed 20% of the number of shares of the Common Stock
outstanding on the Original Issue Date (such number of shares as would not equal
or exceed such 20% limit, the "Issuable Maximum"), and (3) the Company shall not
have previously obtained the vote of shareholders (the "Shareholder Approval"),
if any, as may be required by the rules and regulations of The Nasdaq Stock
Market (or successor thereto) applicable to approve the issuance of Common Stock
in excess of the Issuable Maximum in a private placement whereby shares of
Common Stock are deemed to have been issued at a price that is less than the
greater of book or fair market value of the Common Stock, then the Company shall
issue to the Holder so requesting a conversion a number of shares of Common
Stock equal to the Issuable Maximum and, with respect to the remainder of the
aggregate Stated Value of the shares of Preferred Stock then held by such Holder
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<PAGE> 28
for which a conversion in accordance with the Conversion Price would result in
an issuance of Common Stock in excess of the Issuable Maximum (the "Excess
Stated Value"), the converting Holder shall have the option to require the
Company to either (a) use its best efforts to obtain the Shareholder Approval
applicable to such issuance as soon as is possible, but in any event not later
than the 60th day after such request, or (b)(i) issue and deliver to such Holder
a number of shares of Common Stock as equals (x) the Excess Stated Value, plus
accrued dividends on all shares of Preferred Stock being converted, divided by
(y) the closing sales price of the Common Stock on the Original Issue Date, and
(ii) cash in an amount equal to the product of (x) the Per Share Market Value on
the Conversion Date and (y) the number of shares of Common Stock in excess of
such Holder's pro rata portion of the Issuable Maximum that would have otherwise
been issuable to the Holder in respect of such conversion but for the provisions
of this Section (such amount of cash being hereinafter referred to as the
"Discount Equivalent"), or (c) pay cash to the converting Holder in an amount
equal to the Mandatory Redemption Amount (as defined in Section 8) for the
Excess Stated Value. If the Company fails to pay the Discount Equivalent or the
Mandatory Redemption Amount, as the case may be, in full pursuant to this
Section within seven (7) days after the date payable, the Company will pay
interest thereon at a rate of 15% per annum to the converting Holder, accruing
daily from the Conversion Date until such amount, plus all such interest
thereon, is paid in full.
(b) (i) Not later than three (3) Trading Days after any Conversion
Date, the Company will deliver to the Holder (i) a certificate or certificates
which shall be free of restrictive legends and trading restrictions (other than
those required by Section 3.1(b) of the Purchase Agreement) representing the
number of shares of Common Stock being acquired upon the conversion of shares of
Preferred Stock (subject to the limitations set forth in Section 5(a)(ii)
hereof), (ii) one or more certificates representing the number of shares of
Preferred Stock not converted, (iii) a bank check in the amount of accrued and
unpaid dividends (if the Company has elected to pay accrued dividends in cash),
and (iv) if the Company has elected and is permitted hereunder to pay accrued
dividends in shares of Common Stock, certificates, which shall be free of
restrictive legends and trading restrictions (other than those required by
Section 3.1 (b) of the Purchase Agreement), representing such shares of Common
Stock; provided, however, that the Company shall not be obligated to issue
certificates evidencing the shares of Common Stock issuable upon conversion of
any shares of Preferred Stock until certificates evidencing such shares of
Preferred Stock are either delivered for conversion to the Company or any
transfer agent for the Preferred Stock or Common Stock, or the Holder of such
Preferred Stock notifies the Company that such certificates have been lost,
stolen or destroyed and provides a bond (or other adequate security) reasonably
satisfactory to the Company to indemnify the Company from any loss incurred by
it in connection therewith. The Company shall, upon request of the Holder, if
available, use its best efforts to deliver any certificate or certificates
required to be delivered by the Company under this Section electronically
through the Depository Trust Corporation or another established clearing
corporation performing similar functions. If in the case of any Conversion
Notice such certificate or certificates, including for purposes hereof, any
shares of Common Stock to be issued on the Conversion Date on account of accrued
but unpaid dividends hereunder, are not delivered to or as directed by the
applicable Holder by the third (3rd) Trading Day after the Conversion Date, the
Holder shall be entitled by written notice to the Company at any time on or
before its receipt of such certificate or certificates thereafter,
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<PAGE> 29
to rescind such conversion, in which event the Company shall immediately return
the certificates representing the shares of Preferred Stock tendered for
conversion.
(ii) If the Company fails to deliver to the Holder such
certificate or certificates pursuant to Section 5(b)(i), including for purposes
hereof, any shares of Common Stock to be issued on the Conversion Date on
account of accrued but unpaid dividends hereunder, by the third (3rd) Trading
Day after the Conversion Date, the Company shall pay to such Holder, in cash, as
liquidated damages and not as a penalty, $5,000 for each day after such third
(3rd) Trading Day until such certificates are delivered. Nothing herein shall
limit a Holder's right to pursue actual damages for the Company's failure to
deliver certificates representing shares of Common Stock upon conversion within
the period specified herein and such Holder shall have the right to pursue all
remedies available to it at law or in equity including, without limitation, a
decree of specific performance and/or injunctive relief. The exercise of any
such rights shall not prohibit the Holders from seeking to enforce damages
pursuant to any other Section hereof or under applicable law. Further, if the
Company shall not have delivered any cash due in respect of conversions of
Preferred Stock or as payment of dividends thereon by the third (3rd) Trading
Day after the Conversion Date, the Holder may, by notice to the Company, require
the Company to issue Underlying Shares pursuant to Section 5(c), except that for
such purpose the Conversion Price applicable thereto shall be the lesser of the
Conversion Price on the Conversion Date and the Conversion Price on the date of
such Holder demand. Any such Underlying Shares will be subject to the provision
of this Section.
(iii) In addition to any other rights available to the Holder, if
the Company fails to deliver to the Holder such certificate or certificates
pursuant to Section 5(b)(i), including for purposes hereof, any shares of Common
Stock to be issued on the Conversion Date on account of accrued but unpaid
dividends hereunder, by the third (3rd) Trading Day after the Conversion Date,
and if after such third (3rd) Trading Day the Holder purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by such Holder of the Underlying Shares which the Holder
anticipated receiving upon such conversion (a "Buy-In"), then the Company shall
pay in cash to the Holder (in addition to any remedies available to or elected
by the Holder) the amount by which (x) the Holder's total purchase price
(including brokerage commissions, if any) for the shares of Common Stock so
purchased exceeds (y) the aggregate stated value of the shares of Preferred
Stock for which such conversion was not timely honored. For example, if the
Holder purchases shares of Common Stock having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted conversion of $10,000 aggregate
stated value of the shares of Preferred Stock, the Company shall be required to
pay the Holder $1,000. The Holder shall provide the Company written notice
indicating the amounts payable to the Holder in respect of the Buy-In.
(c)(i) The conversion price for each share of Preferred Stock (the
"Conversion Price") in effect on any Conversion Date shall be the lesser of (a)
$2.31 (the "Initial Conversion Price") and (b) 80% (the "Discount Price")
multiplied by the average of the three (3) lowest Per Share Market Values (as
defined in Section 8) during the thirty (30) Trading Days immediately preceding
the applicable Conversion Date; provided, however, that such thirty (30) Trading
Day period shall be extended for the number of Trading Days during such period
in which (A) trading in the Common Stock was suspended on the NASDAQ or on such
Subsequent Market on which the Common Stock
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<PAGE> 30
is then listed, or (B) after the date declared effective by the Commission, the
Underlying Securities Registration Statement is not effective, or (C) after the
date declared effective by the Commission, the Prospectus included in the
Underlying Securities Registration Statement may not be used by the Holder for
the resale of Underlying Shares; provided further, that prior to the 240th day
following the Original Issue Date, the Conversion Price may not be less than the
Floor (as defined in Section 8), except that (i) the Floor shall immediately
cease to apply if the Company fails to timely file with the Commission a Form
10-Q that meets the Revenue Target applicable to such Form 10-Q described in
Section 5(a)(i) and (ii) the Floor shall not apply to (and shall be lowered in
accordance with subparagraph (D) below) any adjustments of the Conversion Price
pursuant to subparagraph (D) below or to adjustments to the Conversion Price as
a result of the provisions of Section 5(c)(ii)-(v).
(A) If an Underlying Securities Registration Statement is not filed
on or prior to the Filing Date (as defined in the Registration Rights Agreement)
(if the Company files such Underlying Securities Registration Statement without
affording the Holder the opportunity to review and comment on the same as
required by Section 3(a) of the Registration Rights Agreement, the Company shall
not be deemed to have satisfied this clause (a)), then the Company will pay to
the Holders on the calendar day immediately following the Filing Date an amount
equal to 1% of the aggregate Stated Value of the Preferred Stock purchased by
the Holders in cash as liquidated damages, and not as a penalty. Commencing on
the 60th day following the Original Issue Date, and on expiration of each
succeeding 30-day period thereafter until the Underlying Securities Registration
Statement is filed, the Company will pay to the Holders an amount equal to 3% of
the aggregate Stated Value of the Preferred Stock purchased by the Holders in
cash as liquidated damages, and not as a penalty.
(B) If the Company fails to respond to questions or comments from
the Commission within ten (10) Business Days (as defined in the Registration
Rights Agreement) of receipt of such questions or comments (the "Response
Deadline"), the Company will pay to the Holders on the Business Day immediately
following the Response Deadline and on each of the four immediately succeeding
Business Days until the earlier to occur of the sixth Business Day immediately
following the Response Deadline or such time as a response is filed with the
Commission, an amount of $10,000 in cash as liquidated damages, and not as a
penalty. Commencing on the sixth Business Day immediately following the Response
Deadline, during every 5 Business Day period until a response is filed with the
Commission, the Company will pay to the Holders on each Business Day an amount
equal to the amount that was to be paid by the Company to the Holders on each
Business Day during the immediately preceding 5 Business Day period pursuant to
this subparagraph plus $2,500, in cash as liquidated damages, and not as a
penalty (for example, on each Business Day during the second 5 Business Day
period immediately following the Response Deadline, the Company shall pay to the
Holders $12,500 and on each Business Day during the third 5 Business Day period
immediately following the Response Deadline, the Company shall pay to the
Holders $15,000).
(C) If the Underlying Securities Registration Statement is not
declared effective by the Commission on or prior to the Effectiveness Date (as
defined in the Registration Rights Agreement), then the Company will pay to the
Holders on January 1, 1999, an amount equal
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<PAGE> 31
to 1% of the aggregate Stated Value of the Preferred Stock purchased by the
Holders in cash as liquidated damages, and not as a penalty. Thereafter, on
February 1, 1999, and on the first day of each succeeding month thereafter until
the Underlying Securities Registration Statement is declared effective by the
Commission, the Company will pay to the Holders an amount equal to 3% of the
aggregate Stated Value of the Preferred Stock purchased by the Holders in cash
as liquidated damages, and not as a penalty.
(D) If (a) the Company fails to file with the Commission a request
for acceleration in accordance with Rule 12d1-2 promulgated under the Securities
Exchange Act of 1934, as amended, within five (5) days of the date that the
Company is notified (orally or in writing, whichever is earlier) by the
Commission that an Underlying Securities Registration Statement will not be
"reviewed," or not subject to further review, or (b) such Underlying Securities
Registration Statement is filed with and declared effective by the Commission
but thereafter ceases to be effective as to all Registrable Securities at any
time prior to the expiration of the "Effectiveness Period" (as defined in the
Registration Rights Agreement), without being succeeded within ten (10) days by
a subsequent Underlying Securities Registration Statement filed with and
declared effective by the Commission, or (c) trading in the Common Stock shall
be delisted or suspended from trading on the NASDAQ or on such Subsequent Market
on which the Common Stock is then listed for more than three Trading Days (which
need not be consecutive days) or (d) an amendment to the Underlying Securities
Registration Statement is not filed by the Company with the Commission within
ten (10) days of the Commission's notifying the Company that such amendment is
required in order for the Underlying Securities Registration Statement to be
declared effective or (e) if the conversion rights of the Holders are suspended
for any reason, or (f) if the Company is required to convene a shareholders
meeting pursuant to Section 5(a)(ii)(B) and fails to convene a meeting of
shareholders within the time periods specified in Section 5(a)(ii)(B) (any such
failure or breach being referred to as an "Event," for purposes of clause (a)
the date on which such five (5) day period is exceeded, or for purposes of
clause (b) and (d) the date which such 10 day-period is exceeded, or for
purposes of clause (c) the date on which such three (3) Trading Day-period is
exceeded, being referred to as "Event Date"), the Conversion Price shall be
decreased by 3% on the Event Date and each monthly anniversary thereof until the
earlier to occur of the second month anniversary after the Event Date and such
time as the applicable Event is cured (i.e., the Conversion Price would decrease
by 3% as of the Event Date and 5% as of the one month anniversary of such Event
Date). Commencing on the second month anniversary after the Event Date, the
Holder shall have the option to either (x) require further cumulative 3%
discounts to continue or (y) require the Company to pay to the Holder 3% of the
aggregate Stated Values of the shares of Preferred Stock then held by such
Holder, in cash, as liquidated damages and not as a penalty, on the first day of
each monthly anniversary of the Event Date, until such time as the applicable
Event is cured. Any decrease in the Conversion Price pursuant to this Section
shall remain in effect notwithstanding the fact that the Event causing such
decrease has been subsequently cured and further monthly decreases have ceased.
The provisions of this Section 5 (c)(i) are not exclusive and shall in no way
limit the Company's obligations under the Registration Rights Agreement.
(ii) If the Company, at any time while any shares of Preferred Stock are
outstanding, shall (a) pay a stock dividend or otherwise make a distribution or
distributions on shares
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<PAGE> 32
of its Junior Securities or pari passu securities payable in shares of Common
Stock, (b) subdivide outstanding shares of Common Stock into a larger number of
shares, (c) combine outstanding shares of Common Stock into a smaller number of
shares, or (d) issue by reclassification of shares of Common Stock any shares of
capital stock of the Company, the Initial Conversion Price shall be multiplied
by a fraction of which the numerator shall be the number of shares of Common
Stock outstanding before such event and of which the denominator shall be the
number of shares of Common Stock outstanding after such event. Any adjustment
made pursuant to this Section 5(c)(ii) shall become effective immediately after
the record date for the determination of stockholders entitled to receive such
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or re-classification.
(iii) If the Company, at any time while any shares of Preferred
Stock are outstanding, shall issue rights, warrants or options to all holders of
Common Stock entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the Per Share Market Value at the record date
mentioned below, then the Initial Conversion Price shall be multiplied by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of such rights, warrants or
options, plus the number of shares of Common Stock which the aggregate offering
price of the total number of shares so offered would purchase at such Per Share
Market Value, and the denominator of which shall be the sum of the number of
shares of Common Stock outstanding immediately prior to such issuance plus the
number of shares of Common Stock offered for subscription or purchase. Such
adjustment shall be made whenever such rights or warrants are issued, and shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants. However, upon the
expiration of any right, warrant or option to purchase shares of Common Stock
the issuance of which resulted in an adjustment in the Conversion Price pursuant
to this Section 5(c)(iii), if any such right, warrant or option shall expire and
shall not have been exercised, the Conversion Price shall immediately upon such
expiration shall be recomputed and effective immediately upon such expiration
shall be increased to the price which it would have been (but reflecting any
other adjustments in the Conversion Price made pursuant to the provisions of
this Section 5 upon the issuance of other rights or warrants) had the adjustment
of the Conversion Price made upon the issuance of such rights, warrants, or
options been made on the basis of offering for subscription or purchase only
that number of shares of Common Stock actually purchased upon the exercise of
such rights, warrants or options actually exercised.
(iv) If the Company or any subsidiary thereof, as applicable with
respect to Common Stock Equivalents (as defined below), at any time while any
shares of Preferred Stock are outstanding, shall issue shares of Common Stock or
rights, warrants, options or other securities or debt that is convertible into
or exchangeable for shares of Common Stock ("Common Stock Equivalents")
entitling any Person to acquire shares of Common Stock at a price per share less
than the Conversion Price, then the Conversion Price shall be multiplied by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the issuance of shares of Common Stock or such
Common Stock Equivalents plus the number of shares of Common Stock which the
offering price for such shares of Common Stock or Common Stock Equivalents would
purchase at the Conversion Price, and the denominator of which shall be the sum
of the number of shares of Common Stock outstanding immediately prior to such
issuance plus the
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<PAGE> 33
number of shares of Common Stock so issued or issuable, provided, that for
purposes hereof, all shares of Common Stock that are issuable upon exercise or
exchange of Common Stock Equivalents shall be deemed outstanding immediately
after the issuance of such Common Stock Equivalents. Such adjustment shall be
made whenever such shares of Common Stock or Common Stock Equivalents are
issued.
(v) If the Company, at any time while shares of Preferred Stock are
outstanding, shall distribute to all holders of Common Stock (and not to
Holders) evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase any security (excluding those referred to in Sections
5(c)(ii)-(iv) above), then in each such case the Initial Conversion Price at
which each share of Preferred Stock shall thereafter be convertible shall be
determined by multiplying the Initial Conversion Price in effect immediately
prior to the record date fixed for determination of stockholders entitled to
receive such distribution by a fraction of which the denominator shall be the
Per Share Market Value of Common Stock determined as of the record date
mentioned above, and of which the numerator shall be such Per Share Market Value
of the Common Stock on such record date less the then fair market value at such
record date of the portion of such assets or evidence of indebtedness so
distributed applicable to one outstanding share of Common Stock as determined by
the Board of Directors in good faith; provided, however, that in the event of a
distribution exceeding ten percent (10%) of the net assets of the Company, if
the Holders of a majority in interest of the Preferred Stock dispute such
valuation, such fair market value shall be determined by a nationally recognized
or major regional investment banking firm or firm of independent certified
public accountants of recognized standing (which may be the firm that regularly
examines the financial statements of the Company) (an "Appraiser") selected in
good faith by the Holders of a majority in interest of the shares of Preferred
Stock then outstanding; and provided, further, that the Company, after receipt
of the determination by such Appraiser shall have the right to select an
additional Appraiser, in good faith, in which case the fair market value shall
be equal to the average of the determinations by each such Appraiser. In either
case the adjustments shall be described in a statement provided to the Holders
of the portion of assets or evidences of indebtedness so distributed or such
subscription rights applicable to one share of Common Stock. Such adjustment
shall be made whenever any such distribution is made and shall become effective
immediately after the record date mentioned above.
(vi) All calculations under this Section 5 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(vii) Whenever the Conversion Price is adjusted pursuant to Section
5(c)(i),(ii),(iii),(iv), or (v) the Company shall promptly mail to each Holder,
a notice setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
(viii) In case of any reclassification of the Common Stock, or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property (other than compulsory share exchanges which
constitute Change of Control Transactions), the Holders of the Preferred Stock
then outstanding shall have the right thereafter to convert such shares only
into the shares of stock and other securities, cash and property receivable upon
or
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<PAGE> 34
deemed to be held by holders of Common Stock following such reclassification or
share exchange, and the Holders of the Preferred Stock shall be entitled upon
such event to receive such amount of securities, cash or property as a holder of
the number of shares of the Common Stock of the Company into which such shares
of Preferred Stock could have been converted immediately prior to such
reclassification or share exchange would have been entitled. This provision
shall similarly apply to successive reclassifications or share exchanges.
(ix) If (a) the Company shall declare a dividend (or any other
distribution) on its Common Stock, (b) the Company shall declare a special
nonrecurring cash dividend on or a redemption of its Common Stock, (c) the
Company shall authorize the granting to all holders of the Common Stock rights
or warrants to subscribe for or purchase any shares of capital stock of any
class or of any rights, (d) the approval of any stockholders of the Company
shall be required in connection with any reclassification of the Common Stock of
the Company, any consolidation or merger to which the Company is a party, any
sale or transfer of all or substantially all of the assets of the Company, of
any compulsory share of exchange whereby the Common Stock is converted into
other securities, cash or property, or (e) the Company shall authorize the
voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company; then the Company shall cause to be filed at each office or
agency maintained for the purpose of conversion of Preferred Stock, and shall
cause to be mailed to the Holders at their last addresses as they shall appear
upon the stock books of the Company, at least 20 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distributions, redemption, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided, however, that
the failure to mail such notice or any defect therein or in the mailing thereof
shall not affect the validity of the corporate action required to be specified
in such notice. Holders are entitled to convert shares of Preferred Stock during
the 20-day period commencing the date of such notice to the effective date of
the event triggering such notice.
(x) If the Company (i) makes a public announcement that it intends
to enter into a Change of Control Transaction (as defined in Section 8) or (ii)
any person, group or entity (including the Company, but excluding a Holder or
any affiliate of a Holder) publicly announces a bona fide tender offer, exchange
offer or other transaction to purchase 33% or more of the Common Stock (such
announcement being referred to herein as a "Major Announcement" and the date on
which a Major Announcement is made, the "Announcement Date"), then, in the event
that a Holder seeks to convert shares of Preferred Stock on or following the
Announcement Date, the Conversion Price shall, effective upon the Announcement
Date and continuing through the earlier to occur of the consummation of the
proposed transaction or tender offer, exchange offer or other transaction and
the Abandonment Date (as defined below), be equal to the lower of (x) the
average Per Share Market Value on the five Trading Days immediately preceding
(but not including) the Announcement Date and (y) the Conversion Price that
would otherwise have been in effect on the
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<PAGE> 35
Conversion Date for such Preferred Stock but for the application of this
section. "Abandonment Date" means with respect to any proposed transaction or
tender offer, exchange offer or other transaction for which a public
announcement as contemplated by this paragraph has been made, the date upon
which the Company (in the case of clause (i) above) or the person, group or
entity (in the case of clause (ii) above) publicly announces the termination or
abandonment of the proposed transaction or tender offer, exchange offer or
another transaction which caused this paragraph to become operative.
(d) The Company covenants that it will at all times reserve and keep
available out of its authorized and unissued Common Stock solely for the purpose
of issuance upon conversion of Preferred Stock and payment of dividends on
Preferred Stock, each as herein provided, free from preemptive rights or any
other actual contingent purchase rights of persons other than the Holders, not
less than such number of shares of Common Stock as shall (subject to any
additional requirements of the Company as to reservation of such shares set
forth in the Purchase Agreement) be issuable (taking into account the
adjustments and restrictions of Section 5(a) and Section 5(c)) upon the
conversion of all outstanding shares of Preferred Stock and payment of dividends
hereunder. The Company covenants that all shares of Common Stock that shall be
so issuable shall, upon issue, be duly and validly authorized, issued and fully
paid, nonassessable and freely tradeable, subject to the legend requirements of
Section 3.1 (b) of the Purchase Agreement.
(e) Upon a conversion hereunder the Company shall not be required to
issue stock certificates representing fractions of shares of Common Stock, but
may if otherwise permitted, make a cash payment in respect of any final fraction
of a share based on the Per Share Market Value at such time. If the Company
elects not, or is unable, to make such a cash payment, the Holder of a share of
Preferred Stock shall be entitled to receive, in lieu of the final fraction of a
share, one whole share of Common Stock.
(f) The issuance of certificates for shares of Common Stock on
conversion of Preferred Stock shall be made without charge to the Holders
thereof for any documentary stamp or similar taxes that may be payable in
respect of the issue or delivery of such certificate, provided that the Company
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate upon
conversion in a name other than that of the Holder of such shares of Preferred
Stock so converted and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
(g) Shares of Preferred Stock converted into Common Stock shall be
canceled. The Company may not reissue any shares of Preferred Stock.
(h) Any and all notices or other communications or deliveries to be
provided by the Holders of the Preferred Stock hereunder, including, without
limitation, any Conversion Notice, shall be in writing and delivered personally,
by facsimile or sent by a nationally recognized overnight courier service,
addressed to the attention of the Chief Financial Officer of the Company at the
facsimile telephone number or address of the principal place of business of the
Company as set forth
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<PAGE> 36
in the Purchase Agreement. Any and all notices or other communications or
deliveries to be provided by the Company hereunder shall be in writing and
delivered personally, by facsimile or sent by a nationally recognized overnight
courier service, addressed to each Holder at the facsimile telephone number or
address of such Holder appearing on the books of the Company, or if no such
facsimile telephone number or address appears, at the principal place of
business of the Holder. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 8:00 p.m. (Eastern
Standard Time), (ii) the date after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section later than 8:00 p.m. (Eastern Standard Time) on any
date and earlier than 11:59 p.m. (Eastern Standard Time) on such date, (iii)
upon receipt, if sent by a nationally recognized overnight courier service, or
(iv) upon actual receipt by the party to whom such notice is required to be
given.
Section 6. Optional Redemption.
(a) So long as the Conversion Price is less than $1.50, the Company
shall have the right, exercisable at any time upon 20 Trading Days' notice (an
"Optional Redemption Notice") to the Holders of the Preferred Stock given at any
time after the Original Issue Date to redeem all or any portion of the shares of
Preferred Stock which have not previously been converted or redeemed, at a price
equal to the Optional Redemption Price (as defined below), provided, that the
Company shall not be entitled to deliver an Optional Redemption Notice to the
Holders if: (i) the number of shares of Common Stock at the time authorized,
unissued and unreserved for all purposes is insufficient to satisfy the
Company's conversion obligations of all shares of Preferred Stock then
outstanding, or (ii) the Underlying Shares then outstanding are not registered
for resale pursuant to an effective Underlying Securities Registration Statement
and may not be sold without volume restrictions pursuant to Rule 144 promulgated
under the Securities Act, as determined by counsel to the Company pursuant to a
written opinion letter, addressed to the Company's transfer agent in the form
and substance acceptable to the Holders and such transfer agent, or (iii) the
Common Stock is not then listed for trading on the NASDAQ or a Subsequent
Exchange. The entire Optional Redemption Price shall be paid in cash. Holders
may convert (and the Company shall honor such conversions in accordance with the
terms hereof) any shares of Preferred Stock, including shares subject to an
Optional Redemption Notice, during the period from the date thereof through the
20th Trading Day after the receipt of an Optional Redemption Notice.
(b) If any portion of the Optional Redemption Price shall not be paid by
the Company by the 20th Trading Day after the delivery of an Optional Redemption
Notice, interest shall accrue thereon at the rate of 15% per annum until the
Optional Redemption Price plus all such interest is paid in full. In addition,
if any portion of the Optional Redemption Price remains unpaid after the date
due, the Holder of the Preferred Stock subject to such redemption may elect, by
written notice to the Company given at any time thereafter, to either (i) demand
conversion of all or any portion of the shares of Preferred Stock for which such
Optional Redemption Price, plus interest thereof, has not been paid in full (the
"Unpaid Redemption Shares"), in which event the Per Share Market Value for such
shares shall be the lower of the Per Share Market Value calculated on the date
the Optional Redemption Price was originally due and the Per Share Market Value
as of the Holder's
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<PAGE> 37
written demand for conversion, or (ii) invalidate ab initio such redemption,
notwithstanding anything herein contained to the contrary. If the Holder elects
option (i) above, the Company shall within three (3) Trading Days of its receipt
of such election deliver to the Holder the shares of Common Stock issuable upon
conversion of the Unpaid Redemption Shares subject to such Holder conversion
demand and otherwise perform its obligations hereunder with respect thereto; or,
if the Holder elects option (ii) above, the Company shall promptly, and in any
event not later than three (3) Trading Days from receipt of Holder's notice of
such election, return to the Holder all of the Unpaid Redemption Shares.
(c) The "Optional Redemption Price" shall equal the sum of (i) the
product of (A) the number of shares of Preferred Stock to be redeemed and (B)
$11,000, and (ii) all other amounts, costs, expenses and liquidated damages due
in respect of such shares of Preferred Stock.
Section 7. Redemption Upon Triggering Events.
(a) Upon the occurrence of a Triggering Event, each Holder shall (in
addition to all other rights it may have hereunder or under applicable law), has
the right, exercisable at the sole option of such Holder, to require the Company
to redeem all or a portion of the Preferred Stock then held by such Holder for a
redemption price, in cash, equal to the sum of (i) the Mandatory Redemption
Amount plus (ii) the product of (A) the number of Underlying Shares issued in
respect of conversions or as payment of dividends hereunder and then held by the
Holder and (B) the Per Share Market Value on the date such redemption is
demanded or the date the redemption price hereunder is paid in full, whichever
is greater. If the Company fails to pay the redemption price hereunder in full
pursuant to this Section within seven (7) days after the date of a demand
therefor, the Company will pay interest thereon at a rate of 15% per annum,
accruing daily from such seventh day until the redemption price, plus all such
interest thereon, is paid in full. For purposes of this Section, a share of
Preferred Stock is outstanding until such date as the Holder shall have received
Underlying Shares upon a conversion (or attempted conversion) thereof.
A "Triggering Event" means any one or more of the following events
(whatever the reason and whether it shall be voluntary or involuntary or
effected by operation of law or pursuant to any judgement, decree or order of
any court, or any order, rule or regulation of any administrative or
governmental body):
(i) the failure of an Underlying Securities Registration
Statement to be declared effective by the Commission on or prior to March 31,
1999;
(ii) if, during the Effectiveness Period, the effectiveness
of the Underlying Securities Registration Statement lapses for any reason, or
the Holder shall not be permitted to resell Registrable Securities under the
Underlying Securities Registration Statement;
(iii) the failure of the Common Stock to be listed for
trading on the NASDAQ or on a Subsequent Market or the suspension of the Common
Stock from trading on the NASDAQ or on a Subsequent Market, in either case, for
more than three (3) consecutive days;
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<PAGE> 38
(iv) (A) the Company shall fail for any reason to deliver
certificates representing Underlying Shares issuable upon a conversion hereunder
that comply with the provisions hereof (x) prior to the 10th day after the
Conversion Date after receipt of notice from a Holder given on or prior to the
6th day after the Conversion Date or (y) prior to the 3rd day after receipt of
notice from a Holder given on or after the 7th day after the Conversion Date or
(B) the Company shall provide notice to any Holder, including by way of public
announcement, at any time, of its intention not to comply with requests for
conversion of any Preferred Stock in accordance with the terms hereof;
(v) the Company shall be a party to any Change of Control
Transaction, shall agree to sell (in one or a series of related transactions)
all or substantially all of its assets (whether or not such sale would
constitute a Change of Control Transaction) or shall redeem more than a de
minimis number of shares of Common Stock or other Junior Securities (other than
redemptions of Underlying Shares);
(vi) an Event shall not have been cured to the satisfaction
of the Holders prior to the expiration of thirty (30) days from the Event Date
relating thereto;
(vii) the Company shall fail for any reason to pay in cash
the amount due pursuant to a Buy-In within seven (7) days after notice thereof
is delivered hereunder;
(viii) the Company shall fail to have available a sufficient
number of authorized and unreserved shares of Common Stock to issue to such
Holder upon a conversion hereunder; or
(ix) the Company convenes a meeting of shareholders pursuant
to Section 5(a)(ii)(B), but fails to obtain Shareholder Approval at such
meeting.
Section 8. Definitions. For the purposes hereof, the following terms
shall have the following meanings:
"Change of Control Transaction" means the occurrence of any of (i) an
acquisition after the date hereof by an individual or legal entity or "group"
(as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of in
excess of 33% of the voting securities of the Company, (ii) a replacement of
more than one-half of the members of the Company's board of directors which is
not approved by those individuals who are members of the board of directors on
the date hereof in one or a series of related transactions, (iii) the merger of
the Company with or into another entity, consolidation or sale of all or
substantially all of the assets of the Company in one or a series of related
transactions, unless following such transaction, the holders of the Company's
securities continue to hold at least 33% of such securities following such
transaction or (iv) the execution by the Company of an agreement to which the
Company is a party or by which it is bound, providing for any of the events set
forth above in (i), (ii) or (iii).
"Common Stock" means the Company's common stock, no par value, and
stock of any other class into which such shares may hereafter have been
reclassified or changed.
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<PAGE> 39
"Conversion Ratio" means, at any time, a fraction, the numerator of
which is Stated Value plus accrued but unpaid dividends (including any accrued
but unpaid late fees thereon) but only to the extent not paid in shares of
Common Stock in accordance with the terms hereof, and the denominator of which
is the Conversion Price at such time.
"Floor" means [50% of the Initial Conversion Price] (subject to
adjustment for stock splits and similar events in accordance with Sections
5(c)(ii), (iii), (iv) and (v)).
"Initial Conversion Amount" means (i) 60 shares of Preferred Stock
(i.e., 15% of the number of shares of Preferred Stock originally issued on the
Original Issue Date, in the event the Underlying Securities Registration
Statement is declared effective by the Commission on or prior to October 15,
1998) and (ii) 100 shares of Preferred Stock (i.e., 25% of the number of shares
of Preferred Stock originally issued on the Original Issue Date), in the event
the Underlying Securities Registration Statement is declared effective by the
Commission after October 15, 1998.
"Junior Securities" means the Common Stock and all other equity
securities of the Company which are junior in rights and liquidation preference
to the Preferred Stock.
"Mandatory Redemption Amount" for each share of Preferred Stock means
the sum of (i) the greater of (A) 130% of the Stated Value and all accrued
dividends with respect to such share, and (B) the product of (a) the Per Share
Market Value on the Trading Day immediately preceding (x) the date of the
Triggering Event or the Conversion Date, as the case may be, or (y) the date of
payment in full by the Company of the applicable redemption price, whichever is
greater, and (b) the Conversion Ratio calculated on the date of the Triggering
Event, or the Conversion Date, as the case may be, and (ii) all other amounts,
costs, expenses and liquidated damages due in respect of such shares of
Preferred Stock.
"Original Issue Date" shall mean the date of the first issuance of any
shares of the Preferred Stock regardless of the number of transfers of any
particular shares of Preferred Stock and regardless of the number of
certificates which may be issued to evidence such Preferred Stock.
"Per Share Market Value" means on any particular date (a) the closing
bid price per share of the Common Stock on such date on the NASDAQ or on such
Subsequent Market on which the Common Stock is then listed or quoted, or if
there is no such price on such date, then the closing bid price on the NASDAQ or
on such Subsequent Market on which the Common Stock is then listed or quoted on
the date nearest preceding such date, or (b) if the Common Stock is not then
listed or quoted on the NASDAQ or on a Subsequent Market, the closing bid price
for a share of Common Stock in the over-the-counter market, as reported by the
National Quotation Bureau Incorporated or similar organization or agency
succeeding to its functions of reporting prices) at the close of business on
such date, or (c) if the Common Stock is not then reported by the National
Quotation Bureau Incorporated (or similar organization or agency succeeding to
its functions of reporting prices), then the average of the "Pink Sheet" quotes
for the relevant conversion period, as determined in good faith by the Holder,
or (d) if the Common Stock is not then publicly traded the fair market value of
a share of Common Stock as determined by an Appraiser selected in good faith by
the Holders of a majority of the shares of the Preferred Stock.
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<PAGE> 40
"Person" means a corporation, an association, a partnership,
organization, a business, an individual, a government or political subdivision
thereof or a governmental agency.
"Purchase Agreement" means the Convertible Preferred Stock Purchase
Agreement, dated as of the Original Issue Date, among the Company and the
original Holder of the Preferred Stock.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Original Issue Date, between the Company and the
original Holder of the Preferred Stock.
"Trading Day" means (a) a day on which the Common Stock is traded on
the NASDAQ or on such Subsequent Market on which the Common Stock is then listed
or quoted, as the case may be, or (b) if the Common Stock is not listed on the
NASDAQ or on a Subsequent Market, a day on which the Common Stock is traded in
the over-the-counter market, as reported by the OTC Bulletin Board, or (c) if
the Common Stock is not quoted on the OTC Bulletin Board, a day on which the
Common Stock is quoted in the over-the-counter market as reported by the
National Quotation Bureau Incorporated (or any similar organization or agency
succeeding its functions of reporting prices); provided, however, that in the
event that the Common Stock is not listed or quoted as set forth in (a), (b) and
(c) hereof, then Trading Day shall mean any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other government action
to close.
"Underlying Securities Registration Statement" means a registration
statement that meets the requirement of the Registration Rights Agreement and
registers the resale of all Underlying Shares by the recipient thereof, who
shall be named as a "selling stockholder" thereunder.
"Underlying Shares" means, collectively, the shares of Common Stock
into which the Shares are convertible and the shares of Common Stock issuable
upon payment of dividends thereon in accordance with the terms hereof.
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<PAGE> 41
EXHIBIT 1
NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert shares of Preferred Stock)
The undersigned hereby elects to convert the number of shares of 5% Series A
Convertible Preferred Stock indicated below, into shares of Common Stock, no par
value (the "Common Stock"), of Tanisys Technology, Inc. (the "Company")
according to the conditions hereof, as of the date written below. If shares are
to be issued in the name of a person other than undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by the Company
in accordance therewith. No fee will be charged to the Holder for any
conversion, except for such transfer taxes, if any.
Conversion calculations:
----------------------------------------------------
Date to Effect Conversion
----------------------------------------------------
Number of shares of Preferred Stock to be Converted
----------------------------------------------------
Number of shares of Common Stock to be Issued
----------------------------------------------------
Applicable Conversion Price
----------------------------------------------------
Signature
----------------------------------------------------
Name
----------------------------------------------------
Address
[ ] Check box if the Company should not issue shares of
Common Stock in payment of dividends on the Preferred
Stock because such issuance would result in the
Holder beneficially owning more than 4.999% of the
issued and outstanding shares of Common Stock in
accordance with Section 2 (b)(v) of the Certificate
of Designation for the Preferred Stock.
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<PAGE> 1
EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of June 30, 1998, between Tanisys Technology, Inc., a
Wyoming corporation (the "Company"), and KA Investments LDC, a Cayman Islands
corporation (the "Purchaser").
This Agreement is made pursuant to the Convertible Preferred
Stock Purchase Agreement, dated as of the date hereof between the Company and
the Purchaser (the "Purchase Agreement").
The Company and the Purchaser hereby agree as follows:
1. Definitions
Capitalized terms used and not otherwise defined herein that
are defined in the Purchase Agreement shall have the meanings given such terms
in the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
"Advice" shall have meaning set forth in Section 3(o).
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition, "control," when
used with respect to any Person, means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms of "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"Business Day" means any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the
state of New York generally are authorized or required by law or other
government actions to close.
"Closing Date" shall have the meaning set forth in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, no par value.
"Effectiveness Date" means December 31, 1998.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
Registration Rights Agreement
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<PAGE> 2
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means the 45th day following the Closing Date.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Preferred Stock" means the Company's shares of 5% Series A
Convertible Preferred Stock, $1.00 par value, to be issued to the Purchaser
pursuant to the Purchase Agreement.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchaser's Warrant" means the Common Stock Purchase Warrant
issued to the Purchaser pursuant to the Purchase Agreement.
"Registrable Securities" means the shares of Common Stock
issuable upon (i) conversion in full of the Preferred Stock, (ii) payment of
dividends in respect of the Preferred Stock, assuming all such dividends are
paid in shares of Common Stock and (iii) exercise of the Warrants, provided,
however that in order to account for the fact that the number of shares of
Common Stock issuable upon conversion of the Preferred Stock is determined in
part upon the market price of the Common Stock prior to the time of conversion,
Registrable Securities contemplated by clauses (i) and (ii) shall include a
number of shares of Common Stock equal to no less than the sum of (1) (subject
to any floor applicable to the Conversion Price) 200% of the
Registration Rights Agreement
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<PAGE> 3
number of shares of Common Stock into which the shares of Preferred Stock are
convertible, assuming such conversion occurred on the Closing Date or the Filing
Date, whichever yields a lower Conversion Price, and (2) the number of shares of
Common Stock issuable on payment of dividends on the Preferred Stock assuming
all dividends in respect of the Preferred Stock are paid in shares of Common
Stock and that the Preferred Stock remains outstanding for two years. The
Company shall be required to file additional Registration Statements to the
extent the sum of (i) the actual number of shares of Common Stock into which the
Preferred Stock is convertible (together with the payment of dividends thereon)
and (ii) the number of shares of Common Stock issuable upon exercise in full of
the Warrants exceeds the number of shares of Common Stock initially registered
in accordance with the immediately prior sentence. The Company shall have
fifteen (15) days to file such additional Registration Statements after notice
of the requirement thereof, which the Holders may give at such time when the
number of shares of Common Stock as are issuable upon conversion of Preferred
Stock, the number of shares of Common Stock issuable as dividends thereon and
the number of shares of Common Stock issuable upon exercise of the Warrants,
exceeds 85% of the number of shares of Common Stock to be registered in a
Registration Statement hereunder.
"Registration Statement" means the registration statement and
any additional registration statements contemplated by Section 2(a), including
(in each case) the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Counsel" means one special counsel to the Holders,
for which the Holders will be reimbursed by the Company pursuant to Section 4.
"Underwritten Registration or Underwritten Offering" means a
registration in connection with which securities of the Company are sold to an
underwriter for reoffering to the public pursuant to an effective registration
statement.
Registration Rights Agreement
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"Warrants" means (i) the Purchaser's Warrant and (ii) the
Common Stock Purchase Warrant issued to Midori Capital Corporation Randy Stein
and Hoth Incorporated in connection with the transactions contemplated by the
Purchase Agreement.
2. Shelf Registration
(a) On or prior to the Filing Date, the Company shall prepare
and file with the Commission a "Shelf" Registration Statement covering all
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form S-3 (except if
otherwise directed by the Holders of a majority in interest of the applicable
Registrable Securities in accordance herewith or if the Company is not then
eligible to register for resale the Registrable Securities on Form S-3, in which
case such registration shall be on another appropriate form in accordance
herewith). The Registration Statement shall state, to the extent permitted by
Rule 416 under the Securities Act, that it also covers such indeterminate number
of shares of Common Stock as may be required to effect conversion of the
Preferred Stock (and payment of dividends thereon) and exercise of the Warrants
to prevent dilution resulting from stock splits, stock dividends or similar
events, or by reason of changes in the Conversion Price in accordance with the
terms of the Certificate of Designation (as defined in the Purchase Agreement)
or by reason of changes in the Exercise Price (as defined in the Warrants) in
accordance with the terms of the Warrants. The Company shall use its best
efforts to cause the Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof, but in any
event prior to the Effectiveness Date, and shall use its best efforts to keep
such Registration Statement continuously effective under the Securities Act
until the date which is three years after the date that such Registration
Statement is declared effective by the Commission or such earlier date when all
Registrable Securities covered by such Registration Statement have been sold or
may be sold without volume restrictions pursuant to Rule 144(k) as determined by
the counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company's transfer agent (the "Effectiveness
Period"), provided, however, that the Company shall not be deemed to have used
its best efforts to keep the Registration Statement effective during the
Effectiveness Period if it voluntarily takes any action that would result in the
Holders not being able to sell the Registrable Securities covered by such
Registration Statement during the Effectiveness Period, unless such action is
required under applicable law or the Company has filed a post-effective
amendment to the Registration Statement and the Commission has not declared it
effective.
(b) If the Holders of a majority of the Registrable Securities
so elect, an offering of Registrable Securities pursuant to the Registration
Statement may be effected in the form of an Underwritten Offering. In such
event, and, if the managing underwriters advise the Company and such Holders in
writing that in their opinion the amount of Registrable Securities proposed to
be sold in such Underwritten Offering exceeds the amount of Registrable
Securities which can be sold in such Underwritten Offering, there shall be
included in such Underwritten Offering the amount of such Registrable Securities
which in the opinion of such managing underwriters can be sold, and such amount
shall be allocated pro rata among the Holders proposing to sell Registrable
Securities in such Underwritten Offering.
Registration Rights Agreement
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(c) If any of the Registrable Securities are to be sold in an
Underwritten Offering, the investment banker in interest that will administer
the offering will be selected by the Holders of a majority of the Registrable
Securities included in such offering upon consultation with the Company. No
Holder may participate in any Underwritten Offering hereunder unless such Holder
(i) agrees to sell its Registrable Securities on the basis provided in any
underwriting agreements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such arrangements.
3. Registration Procedures
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the
Filing Date, a Registration Statement on Form S-3 (or if the Company is not then
eligible to register for resale the Registrable Securities on Form S-3 such
registration shall be on another appropriate form in accordance herewith, or, in
connection with an Underwritten Offering hereunder, such other form agreed to by
the Company and by the Holders of Registrable Securities) in accordance with the
method or methods of distribution thereof as specified by the Holders (except if
otherwise directed by the Holders), and cause the Registration Statement to
become effective and remain effective as provided herein; provided, however,
that not less than five (5) Business Days prior to the filing of the
Registration Statement or any related Prospectus or any amendment or supplement
thereto (including any document that would be incorporated or deemed to be
incorporated therein by reference), the Company shall, (i) furnish to the
Holders, their Special Counsel and any managing underwriters, copies of all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of such
Holders, their Special Counsel and such managing underwriters, and (ii) cause
its officers and directors, counsel and independent certified public accountants
to respond to such inquiries as shall be necessary, in the reasonable opinion of
respective counsel to such Holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
shall not file the Registration Statement or any such Prospectus or any
amendments or supplements thereto to which the Holders of a majority of the
Registrable Securities, their Special Counsel, or any managing underwriters,
shall reasonably object on a timely basis.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and prepare and
file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) respond as promptly as reasonably possible, but in any
event within ten (10) Business Days, to any comments received from the
Commission with respect to the Registration Statement or any amendment thereto
and
Registration Rights Agreement
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<PAGE> 6
as promptly as reasonably possible provide the Holders true and complete copies
of all correspondence from and to the Commission relating to the Registration
Statement; and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold,
their Special Counsel and any managing underwriters as promptly as reasonably
possible (and, in the case of (i)(A) below, not less than five (5) days prior to
such filing) and (if requested by any such Person) confirm such notice in
writing no later than one (1) Business Day following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the Commission notifies
the Company whether there will be a "review" of such Registration Statement and
whenever the Commission comments in writing on such Registration Statement (the
Company shall provide true and complete copies thereof and all written responses
thereto to each of the Holders); and (C) with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission or any other Federal or state governmental
authority for amendments or supplements to the Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (iv) if at any time any of the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated hereby ceases to be true and correct in all
material respects; (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; and (vi) of the
occurrence of any event that makes any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of
the Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) If requested by any managing underwriter or the Holders of
a majority in interest of the Registrable Securities to be sold in connection
with an Underwritten Offering, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement such
information as such managing underwriters and such Holders reasonably agree
should be included therein, and (ii) make all required filings of such
Prospectus supplement or
Registration Rights Agreement
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<PAGE> 7
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the Company
shall not be required to take any action pursuant to this Section 3(e) that
would, in the opinion of counsel for the Company, violate applicable law or be
materially detrimental to the business prospects of the Company.
(f) Furnish to each Holder, their Special Counsel and any
managing underwriters, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested by
such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder, their Special Counsel,
and any underwriters, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request; and the Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders and any underwriters in connection with
the offering and sale of the Registrable Securities covered by such Prospectus
and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use its best efforts to register or qualify or cooperate with the selling
Holders, any underwriters and their Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Holder or underwriter requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by a
Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or subject
the Company to any material tax in any such jurisdiction where it is not then so
subject.
(i) Cooperate with the Holders and any managing underwriters
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to a
Registration Statement, which certificates shall be free, to the extent
permitted by applicable law, of all restrictive legends, and to enable such
Registrable Securities to be in such denominations and registered in such names
as any such managing underwriters or Holders may request at least two Business
Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section
3(c)(vi), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other
Registration Rights Agreement
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<PAGE> 8
required document so that, as thereafter delivered, neither the Registration
Statement nor such Prospectus will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(k) Use its best efforts to cause all Registrable Securities
relating to such Registration Statement to be listed on the Nasdaq SmallCap
Market (the "NASDAQ") and any other securities exchange, quotation system,
market or over-the-counter bulletin board, if any, on which similar securities
issued by the Company are then listed as and when required pursuant to the
Purchase Agreement.
(l) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in Underwritten
Offerings) and take all such other actions in connection therewith (including
those reasonably requested by any managing underwriters and the Holders of a
majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities, and whether or not an
underwriting agreement is entered into, (i) make such representations and
warranties to such Holders and such underwriters as are customarily made by
issuers to underwriters in underwritten public offerings, and confirm the same
if and when requested; (ii) in the case of an Underwritten Offering obtain and
deliver copies thereof to each Holder and the managing underwriters, if any, of
opinions of counsel to the Company and updates thereof addressed to each Holder
and each such underwriter, in form, scope and substance reasonably satisfactory
to any such managing underwriters and Special Counsel to the selling Holders
covering the matters customarily covered in opinions requested in Underwritten
Offerings and such other matters as may be reasonably requested by such Special
Counsel and underwriters; (iii) immediately prior to the effectiveness of the
Registration Statement, and, in the case of an Underwritten Offering, at the
time of delivery of any Registrable Securities sold pursuant thereto, use its
best reasonable efforts to obtain and deliver copies to the Holders and the
managing underwriters, if any, of "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Company or of any business acquired by the Company for which financial
statements and financial data is, or is required to be, included in the
Registration Statement), addressed to the Company in form and substance as are
customary in connection with Underwritten Offerings; (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions and
procedures no less favorable to the selling Holders and the underwriters, if
any, than those set forth in Section 5 (or such other provisions and procedures
acceptable to the managing underwriters, if any, and holders of a majority of
Registrable Securities participating in such Underwritten Offering); and (v)
deliver such documents and certificates as may be reasonably requested by the
Holders of a majority of the Registrable Securities being sold, their Special
Counsel and any managing underwriters to evidence the continued validity of the
representations and warranties made pursuant to clause 3(l)(i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
(m) Make available for inspection by the selling Holders, any
representative of such Holders, any underwriter participating in any disposition
of Registrable Securities, and any
Registration Rights Agreement
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<PAGE> 9
attorney or accountant retained by such selling Holders or underwriters, at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the officers, directors, agents and employees of the
Company and its subsidiaries to supply all information in each case reasonably
requested by any such Holder, representative, underwriter, attorney or
accountant in connection with the Registration Statement; provided, however,
that any information that is determined in good faith by the Company in writing
to be of a confidential nature at the time of delivery of such information shall
be kept confidential by such Persons, unless (i) disclosure of such information
is required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities; (ii) disclosure of such information, in the
opinion of counsel to such Person, is required by law; (iii) such information
becomes generally available to the public other than as a result of a disclosure
or failure to safeguard by such Person; or (iv) such information becomes
available to such Person from a source other than the Company and such source is
not known by such Person to be bound by a confidentiality agreement with the
Company.
(n) Comply with all applicable rules and regulations of the
Commission.
(o) The Company may require each selling Holder to furnish to
the Company such information regarding the distribution of such Registrable
Securities and the beneficial ownership of Common Stock held by such Holder as
is required by law to be disclosed in the Registration Statement, and the
Company may exclude from such registration the Registrable Securities of any
such Holder who unreasonably fails to furnish such information within a
reasonable time after receiving such request.
If the Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (if such reference to such Holder by name or otherwise
is not required by the Securities Act or any similar Federal statute then in
force) the deletion of the reference to such Holder in any amendment or
supplement to the Registration Statement filed or prepared subsequent to the
time that such reference ceases to be required.
Each Holder covenants and agrees that (i) it will not sell any
Registrable Securities under the Registration Statement until it has received
copies of the Prospectus as then amended or supplemented as contemplated in
Section 3(g) and notice from the Company that such Registration Statement and
any post-effective amendments thereto have become effective as contemplated by
Section 3(c) and (ii) it and its officers, directors or Affiliates, if any, will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
the Registration Statement.
Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence of
any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv),
3(c)(v) or 3(c)(vi), such Holder will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement
Registration Rights Agreement
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contemplated by Section 3(j), or until it is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement.
4. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company, except as and to the extent
specified in Section 4(b), shall be borne by the Company whether or not pursuant
to an Underwritten Offering and whether or not the Registration Statement is
filed or becomes effective and whether or not any Registrable Securities are
sold pursuant to the Registration Statement. The fees and expenses referred to
in the foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with the NASDAQ or each other
securities exchange or market on which Registrable Securities are required
hereunder to be listed and (B) in compliance with state securities or Blue Sky
laws (including, without limitation, fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications or exemptions of the
Registrable Securities and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions as the managing
underwriters, if any, or the Holders of a majority of Registrable Securities may
designate)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriters, if any,
or by the holders of a majority of the Registrable Securities included in the
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company and Special Counsel for the
Holders, (v) Securities Act liability insurance, if the Company so desires such
insurance, and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions contemplated by
this Agreement. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder.
(b) If the Holders require an Underwritten Offering pursuant
to the terms hereof, the Company shall be responsible for all costs, fees and
expenses in connection therewith, except for the fees and disbursements of the
Underwriters (including any underwriting commissions and discounts) and their
legal counsel and accountants. By way of illustration which is not intended to
diminish from the provisions of Section 4(a), the Holders shall not be
responsible for, and the Company shall be required to pay the fees or
disbursements incurred by the Company (including by its legal counsel and
accountants) in connection with, the preparation and filing of a Registration
Statement and related Prospectus for such offering, the maintenance of such
Registration Statement in accordance with the terms hereof, the listing of the
Registrable Securities in accordance with the requirements hereof, and printing
expenses incurred to comply with the requirements hereof.
Registration Rights Agreement
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5. Indemnification
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents (including any underwriters
retained by such Holder in connection with the offer and sale of Registrable
Securities), brokers (including brokers who offer and sell Registrable
Securities as principal as a result of a pledge or any failure to perform under
a margin call of Common Stock), investment advisors and employees of each of
them, each Person who controls any such Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising
out of or relating to any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that such untrue
statements or omissions are based solely upon information regarding such Holder
furnished in writing to the Company by such Holder expressly for use therein,
which information was reasonably relied on by the Company for use therein or to
the extent that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder expressly for use in the
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto. The Company shall notify the Holders promptly
of the institution, threat or assertion of any Proceeding of which the Company
is aware in connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses (as
determined by a court of competent jurisdiction in a final judgment not subject
to appeal or review) arising solely out of or based solely upon any untrue
statement of a material fact contained in the Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or supplement
thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
such Holder to the Company specifically for inclusion in the Registration
Statement or such Prospectus and that such information was reasonably relied
upon by the Company for use in the Registration Statement, such Prospectus or
such form of prospectus or to the extent that such information relates to such
Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such
Registration Rights Agreement
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<PAGE> 12
form of Prospectus, or in any amendment or supplement thereto. In no event shall
the liability of any selling Holder hereunder be greater in amount than the
dollar amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party shall promptly notify the
Person from whom indemnity is sought (the "Indemnifying Party") in writing, and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
payment of all fees and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to
this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately
and materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised by counsel that a conflict of interest
is likely to exist if the same counsel were to represent such Indemnified Party
and the Indemnifying Party (in which case, if such Indemnified Party notifies
the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within 10 Business Days of written notice thereof to the Indemnifying
Party (regard less of whether it is ultimately determined that an Indemnified
Party is not entitled to indemnification hereunder; provided, that the
Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification hereunder).
Registration Rights Agreement
-12-
<PAGE> 13
(d) Contribution. If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy
or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys' or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the proceeds actually received by such Holder from the sale of the
Registrable Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
Registration Rights Agreement
-13-
<PAGE> 14
(b) No Inconsistent Agreements. Neither the Company nor any of
its subsidiaries has, as of the date hereof, nor shall the Company or any of its
subsidiaries, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Except as and to the extent specified in Schedule 6(b) hereto, neither the
Company nor any of its subsidiaries has previously entered into any agreement
granting any registration rights with respect to any of its securities to any
Person. Without limiting the generality of the foregoing, without the written
consent of the Holders of a majority of the then outstanding Registrable
Securities, the Company shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights in
full of the Holders set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. Except as and to the extent
specified in Schedule 6(b) hereto, neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may include
securities of the Company in the Registration Statement other than the
Registrable Securities, and the Company shall not after the date hereof enter
into any agreement providing any such right to any of its security holders.
(d) Piggy-Back Registrations. If at any time when there is not
an effective Registration Statement covering all of the Registrable Securities
and the Underlying Shares, the Company shall determine to prepare and file with
the Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each holder of Registrable
Securities written notice of such determination and, if within twenty (20) days
after receipt of such notice, any such holder shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities such holder requests to be registered; provided, however,
that the Company shall not be required to register any Registrable Securities
pursuant to this Section 7(d) that are eligible for sale pursuant to Rule 144(k)
of the Commission.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of at least two-thirds of the then outstanding Registrable
Securities; provided, however, that, for the purposes of this sentence,
Registrable Securities that are owned, directly or indirectly, by the Company,
or an Affiliate of the Company are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities to which such
waiver or consent relates; provided, however, that the provisions of this
sentence may not be amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
Registration Rights Agreement
-14-
<PAGE> 15
(f) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Section prior to 8:00 p.m. (New
York City time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in the Purchase Agreement later than 8:00
p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York City
time) on such date, (iii) the Business Day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as follows:
If to the Company: Tanisys Technology, Inc.
12201 Technology Blvd., Suite 125
Austin, TX 78727-6101
Facsimile No.: (512) 257-5351
Attention: Chief Financial Officer
With copies to: Mr. Audie Long
c/o Billing Concepts Corp.
7411 John Smith Drive, Suite 1500
San Antonio, Texas 78229
Facsimile No.: (210) 949-7024
If to the
Purchaser: KA Investments, LDC
1712 Hopkins Crossroads
Minnetonka, MN 55305
Facsimile No.: (612) 542-4284
Attention: Mr. Bruce Lieberman
With copies to: Robinson Silverman Pearce Aronsohn &
Berman LLP
1290 Avenue of the Americas
New York, NY 10104
Facsimile No.: (212) 541-4630
Attention: Kenneth L. Henderson
If to any other Person who is then the registered Holder:
To the address of such Holder as it appears in
the stock transfer books of the Company
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
Registration Rights Agreement
-15-
<PAGE> 16
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written consent of
each Holder. Each Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under the Purchase Agreement.
(h) Assignment of Registration Rights. The rights of each
Holder hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder to any Affiliate of such Holder, any
other Holder or Affiliate of any other Holder and up to four other assignees of
all or a portion of the shares of Preferred Stock, the Warrants or the
Registrable Securities if: (i) the Holder agrees in writing with the transferee
or assignee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment, (ii) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or assignee, and
(b) the securities with respect to which such registration rights are being
transferred or assigned, (iii) following such transfer or assignment the further
disposition of such securities by the transferee or assignees is restricted
under the Securities Act and applicable state securities laws, (iv) at or before
the time the Company receives the written notice contemplated by clause (ii) of
this Section, the transferee or assignee agrees in writing with the Company to
be bound by all of the provisions of this Agreement, and (v) such transfer shall
have been made in accordance with the applicable requirements of the Purchase
Agreement. The rights to assignment shall apply to the Holders (and to
subsequent) successors and assigns.
(i) Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(j) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principles of conflicts of law thereof. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of the any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
Registration Rights Agreement
-16-
<PAGE> 17
(k) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(m) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(n) Shares Held by The Company and its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its Affiliates (other than any Holder or transferees or successors or assigns
thereof if such Holder is deemed to be an Affiliate solely by reason of its
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW]
Registration Rights Agreement
-17-
<PAGE> 18
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
TANISYS TECHNOLOGY, INC.
By:
------------------------------------
Name:
Title:
KA INVESTMENTS LDC
By:
------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 5.1
[FULBRIGHT & JAWORSKI LETTERHEAD]
August 13, 1998
Tanisys Technology, Inc.
12201 Technology Boulevard, Suite 125
Austin, Texas 78727
Dear Sirs:
As counsel to Tanisys Technology, Inc., a Wyoming corporation (the
"Company"), we are familiar with the Registration Statement on Form S-3 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission on or about August 14, 1998, under the Securities Act of 1933, as
amended, relating to an aggregate of 5,353,374 shares of common stock, no par
value ("Common Stock"), of the Company to be sold by certain selling
stockholders listed in the Registration Statement (the "Selling Stockholders").
The Shares will be issued pursuant to the proper and valid (i) conversion of
Series A Convertible Preferred Stock, $1.00 par value per share ("Series A
Stock") or (ii) exercise of certain warrants (the "Warrants") held by the
Selling Stockholders, each as described in the Registration Statement.
In connection therewith, we have examined such corporate records,
documents and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion the shares of Common Stock to be
sold by the Selling Stockholders have been duly and validly authorized, and
when issued in accordance with the terms of the (i) Articles of Continuance of
the Company, as amended, or (ii) Warrants, will be validly issued, fully paid
and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to our firm under the heading "Legal Matters" in
the Prospectus which is contained in the Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
<PAGE> 1
EXHIBIT 10.1
================================================================================
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
Between
KA INVESTMENTS LDC
and
TANISYS TECHNOLOGY
Dated as of June 30, 1998
================================================================================
<PAGE> 2
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement"), dated
as of June 30, 1998, between Tanisys Technology, Inc., a Wyoming corporation
(the "Company"), and KA Investments LDC, a Cayman Islands corporation (the
"Purchaser").
WHEREAS, subject to the terms and conditions set forth in this
Agreement, the Company desires to issue and sell to the Purchaser and the
Purchaser desires to purchase from the Company, shares of the Company's 5%
Series A Convertible Preferred Stock, par value $1.00 per share (the "Preferred
Stock"), which are convertible into shares of the Company's common stock, no par
value (the "Common Stock").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy are
hereby acknowledged, the Company and Purchaser agree as follows:
ARTICLE I
PURCHASE AND SALE OF PREFERRED STOCK
1.1 The Closing.
(a) The Closing. (i) Subject to the terms and conditions set forth
in this Agreement, the Company shall issue and sell to the Purchaser and the
Purchaser shall purchase 400 shares of Preferred Stock (the "Shares") for an
aggregate purchase price of $4,000,000. The closing of the purchase and sale of
the Shares (the "Closing") shall take place at the offices of Robinson Silverman
Pearce Aronsohn & Berman LLP (the "Escrow Agent"), 1290 Avenue of the Americas,
New York, New York 10104, immediately following the execution hereof or such
later date as the parties shall agree. The date of the Closing is hereinafter
referred to as the "Closing Date."
(ii) At the Closing, the parties shall deliver or shall cause to
be delivered such items as are required to be delivered by them in accordance
with the terms of this Agreement, including the following: (A) the Company shall
deliver (1) stock certificates representing the Shares, registered in the name
of the Purchaser, (2) a Common Stock purchase warrant, in the form of Exhibit D,
registered in the name of the Purchaser, pursuant to which the Purchaser shall
have the right at any time and from time to time thereafter through the fourth
anniversary date of the Original Issue Date to acquire 133,333 shares of Common
Stock at an exercise price per share of $3.00 (the "Warrant"), (3) the legal
opinion of Audie Long, counsel to the Company, substantially in the form of
Exhibit C, and (4) all other documents, instruments and writings required to
have been delivered at or prior to the Closing Date by the Company pursuant to
this Agreement, including an executed Registration Rights Agreement, dated the
date hereof, between the Company and the Purchaser, in the form of Exhibit B
(the "Registration Rights Agreement"), and the Irrevocable Transfer Agent
Instructions, in the form of Exhibit E, delivered to and acknowledged by the
Company's transfer agent (the "Transfer Agent Instructions"); and (B) the
Purchaser shall deliver (1) $4,000,000 in United States dollars in immediately
available funds by wire transfer to an account designated prior to the Closing
Date in writing by the Company for such purpose, and (2) all documents,
instruments
<PAGE> 3
and writings required to have been delivered at or prior to the Closing Date by
the Purchaser pursuant to this Agreement, including, without limitation, an
executed Registration Rights Agreement.
1.2 Form of Preferred Stock. The Preferred Stock shall have the
rights preferences and privileges set forth in Exhibit A, and shall be
incorporated into an Articles of Amendment ("Articles of Amendment"), in form
and substance mutually agreed to by the parties.
For purposes of this Agreement, "Conversion Price," "Original Issue
Date," "Conversion Date" and "Trading Day" shall have the meanings set forth in
Exhibit A;"Business Day" shall mean any day except Saturday, Sunday and any day
which shall be a federal legal holiday or a day on which banking institutions in
the State of New York are authorized or required by law or other governmental
action to close.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations, Warranties and Agreements of the Company. The
Company hereby makes the following representations and warranties to the
Purchaser:
(a) Organization and Qualification. The Company is a corporation,
duly incorporated, validly existing and in good standing under the laws of the
State of Wyoming, with the requisite corporate power and authority to own and
use its properties and assets and to carry on its business as currently
conducted. The Company has no subsidiaries other than as set forth in Schedule
2.1(a) (collectively the "Subsidiaries"). Each of the Subsidiaries is an entity,
duly incorporated or otherwise organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization (as
applicable), with the full power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Each of the Company
and the Subsidiaries is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
could not, individually or in the aggregate, (x) adversely affect the legality,
validity or enforceability of the Securities (as defined below) or any of this
Agreement, the Articles of Amendment, the Registration Rights Agreement or the
Warrant (collectively, the "Transaction Documents"), (y) have or result in a
material adverse effect on the results of operations, assets, prospects, or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole, or (z) adversely impair the Company's ability to perform fully on a
timely basis its obligations under any of the Transaction Documents (any of (x),
(y) or (z), a "Material Adverse Effect").
(b) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents, and otherwise to carry out
its obligations thereunder. The execution and delivery of each of the
Transaction Documents
-2- Convertible Preferred
Stock Purchase Agreement
<PAGE> 4
has been duly executed by the Company and, when delivered (or filed, as the case
may be) in accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms. Neither the Company nor any Subsidiary is in violation of any of
the provisions of its respective certificate of incorporation, by-laws or other
charter documents.
(c) Capitalization. The number of authorized, issued and
outstanding capital stock of the Company is set forth in Schedule 2.1(c). No
shares of Common Stock are entitled to preemptive or similar rights, nor is any
holder of the Common Stock entitled to preemptive or similar rights arising out
of any agreement or understanding with the Company by virtue of any of the
Transaction Documents. Except as disclosed in Schedule 2.1(c), there are no
outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or, except as a result of
the purchase and sale of the Shares and the Warrant, securities, rights or
obligations convertible into or exchangeable for, or giving any Person any right
to subscribe for or acquire any shares of Common Stock, or contracts,
commitments, understandings, or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock. To
the knowledge of the Company, except as specifically disclosed in the SEC
Documents (as defined below) or Schedule 2.1(c), no Person or group of related
Persons beneficially owns (as determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) or
has the right to acquire by agreement with or by obligation binding upon the
Company beneficial ownership of in excess of 5% of the Common Stock. A "Person"
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
(d) Issuance of the Shares and the Warrant. The Shares and the
Warrant are duly authorized, and, when issued and paid for in accordance with
the terms hereof, shall have been validly issued, fully paid and nonassessable,
free and clear of all liens, encumbrances and rights of first refusal of any
kind (collectively, "Liens"). The Company has on the date hereof and will, at
all times while the Shares and the Warrant are outstanding, maintain an adequate
reserve of duly authorized shares of Common Stock, reserved for issuance to the
holders of the Shares, to enable it to perform its conversion, exercise and
other obligations under this Agreement, the Articles of Amendment and the
Warrant. Such number of reserved and available shares of Common Stock is not
less than the sum of (i) 200% of the number of shares of Common Stock which
would be issuable upon conversion in full of the Shares, assuming such
conversion occurred on the Original Issue Date or the Filing Date (as defined in
the Registration Rights Agreement), whichever yields a lower Conversion Price,
(ii) the number of shares of Common Stock issuable upon exercise of the Warrant,
and (iii) the number of shares Common Stock which would be issuable upon payment
of dividends on the Shares, assuming each Share is outstanding for three years
and all dividends are paid in shares of Common Stock (such number of shares, the
"Initial Minimum"). All such authorized shares of Common Stock shall be duly
reserved for issuance to the holders of such Shares and Warrant. The shares of
Common Stock issuable upon conversion of the Shares, as payment of dividends
thereon and upon exercise of the Warrant are collectively referred to herein as
the "Underlying Shares." The Shares, the Warrant and the Underlying Shares are,
collectively, the "Securities." When issued in accordance with the
-3- Convertible Preferred
Stock Purchase Agreement
<PAGE> 5
Articles of Amendment and the Warrant, in accordance with their respective
terms, the Underlying Shares shall have been duly authorized, validly issued,
fully paid and nonassessable, free and clear of all Liens.
(e) No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of its certificate of incorporation, bylaws or other
charter documents (each as amended through the date hereof), or (ii) subject to
obtaining the Required Approvals (as defined below), conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time
or both) of, any agreement, credit facility, indenture or instrument (evidencing
a Company debt or otherwise) to which the Company or any Subsidiary is a party
or by which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject (including Federal and state
securities laws and regulations), or by which any property or asset of the
Company is bound or affected, except in the case of each of clauses (ii) and
(iii), as could not, individually or in the aggregate, have or result in a
Material Adverse Effect. The business of the Company is not being conducted in
violation of any law, ordinance or regulation of any governmental authority,
except for violations which, individually or in the aggregate, could not have or
result in a Material Adverse Effect.
(f) Consents and Approvals. Neither the Company nor any Subsidiary
is required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other Federal,
state, local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of the Transaction
Documents, other than (i) the filing of the Articles of Amendment with the
Secretary of State of Wyoming, (ii) the filings required pursuant to Section
3.12, (iii) the filing of a registration statement meeting the requirements set
forth in the Registration Rights Agreement (an "Underlying Securities
Registration Statement") with the Securities and Exchange Commission (the
"Commission") meeting the requirements set forth in the Registration Rights
Agreement and covering the resale of the Underlying Shares by the Purchaser,
(iv) the application(s) to the Nasdaq SmallCap Market (the "NASDAQ") for the
listing of the Underlying Shares with the NASDAQ (and with any other national
securities exchange or market on which the Common Stock is then listed), (v)
applicable Blue Sky filings and, and (vi) in all other cases where the failure
to obtain such consent, waiver, authorization or order, or to give such notice
or make such filing or registration could not have or result in, individually or
in the aggregate, a Material Adverse Effect (the consents, waivers,
authorizations, orders, notices and filings referred to in (i)-(vi) of this
Section are, collectively, the "Required Approvals").
(g) Litigation; Proceedings. Except as specifically disclosed in
the SEC Documents, there is no action, suit, notice of violation, proceeding or
investigation pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries or any of their respective
properties before or by any court, governmental or administrative agency or
regulatory authority (Federal, state, county, local or foreign) which (i)
adversely affects or
-4- Convertible Preferred
Stock Purchase Agreement
<PAGE> 6
challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) could, individually or in the aggregate,
have or result in a Material Adverse Effect.
(h) No Default or Violation. Neither the Company nor any Subsidiary
(i) is in default under or in violation of (and no event has occurred which has
not been waived which, with notice or lapse of time or both, would result in a
default by the Company or any Subsidiary under), nor has the Company or any
Subsidiary received notice of a claim that it is in default under or that it is
in violation of, any indenture, loan or credit agreement or any other agreement
or instrument to which it is a party or by which it or any of its properties is
bound, (ii) is in violation of any order of any court, arbitrator or
governmental body, or (iii) is in violation of any statute, rule or regulation
of any governmental authority, except as could not individually or in the
aggregate, have or result in a Material Adverse Effect.
(i) Private Offering. Assuming the accuracy of the representations
and warranties of the Purchaser set forth in Sections 2.2(b)-(h), the offer,
issuance and sale of the Securities to the Purchaser as contemplated hereby are
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"). Neither the Company nor any Person acting on its
behalf has taken any action could subject the offering, issuance or sale of the
Securities to the registration requirements of the Securities Act.
(j) SEC Documents; Financial Statements. The Company has filed all
reports required to be filed by it under the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the three years preceding the date hereof
(or such shorter period as the Company was required by law to file such
material) (the foregoing materials being collectively referred to herein as the
"SEC Documents" and, together with the Schedules to this Agreement the
"Disclosure Materials") on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Documents prior to the expiration
of any such extension. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Documents, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. All material
agreements to which the Company is a party or to which the property or assets of
the Company are subject have been filed as exhibits to the SEC Documents as
required. The financial statements of the Company included in the SEC Documents
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the
time of filing. Such financial statements have been prepared in accordance with
generally accepted accounting ("GAAP") principles applied on a consistent basis
during the periods involved, except as may be otherwise specified in such
financial statements or the notes thereto, and fairly present in all material
respects the financial position of the Company and its consolidated subsidiaries
as of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments. Since December 31, 1997, except as
specifically disclosed in the SEC Documents, (a) there has been no event,
occurrence or development that has had or that could have or result in a
Material Adverse Effect, (b) the Company has not incurred any liabilities
(contingent or otherwise) other than (x) liabilities
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Stock Purchase Agreement
<PAGE> 7
incurred in the ordinary course of business consistent with past practice and
(y) liabilities not required to be reflected in the Company's financial
statements pursuant to GAAP or required to be disclosed in filings made with the
Commission, (c) the Company has not altered its method of accounting or the
identity of its auditors and (d) except as set forth in Schedule 2.1(j), the
Company has not declared or made any payment or distribution of cash or other
property to its stockholders or officers or directors (other than in compliance
with existing Company stock option plans) with respect to its capital stock, or
purchased, redeemed (or made any agreements to purchase or redeem) any shares of
its capital stock. The Company last filed audited financial statements with the
Commission on December 29, 1997, and has not received any comments from the
Commission in respect thereof.
(k) Investment Company. The Company is not, and is not an Affiliate
(as defined in Rule 405 under the Securities Act) ) of, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(l) Certain Fees. Except for certain fees payable by the Company to
Midori Capital Corporation, no fees or commissions will be payable by the
Company to any broker, financial advisor or consultant, finder, placement agent,
investment banker, or bank with respect to the transactions contemplated by this
Agreement. The Purchaser shall have no obligation with respect to any fees or
with respect to any claims made by or on behalf of other Persons for fees of a
type contemplated in this Section that may be due in connection with the
transactions contemplated by this Agreement. The Company shall indemnify and
hold harmless the Purchaser, its employees, officers, directors, agents, and
partners, and their respective Affiliates, from and against all claims, losses,
damages, costs (including the costs of preparation and attorney's fees) and
expenses suffered in respect of any such claimed or existing fees, as such fees
and expenses are incurred.
(m) Solicitation Materials. Neither the Company nor any Person
acting on the Company's behalf has (i) distributed any offering materials in
connection with the offering and sale of the Securities, or (ii) solicited any
offer to buy or sell the Securities by means of any form of general solicitation
or advertising.
(n) Form S-3 Eligibility. The Company is eligible to register
securities for resale with the Commission under Form S-3 promulgated under the
Securities Act.
(o) Exclusivity. The Company shall not issue and sell the Shares to
any Person other than the Purchaser other than with the specific prior written
consent of the Purchaser.
(p) Seniority. No class of equity securities of the Company is
senior to the Shares in right of payment, whether upon liquidation or
dissolution, or otherwise.
(q) Listing and Maintenance Requirements Compliance. The Company
has not, in the two years preceding the date hereof, received notice (written or
oral) from the NASDAQ or any other stock exchange, market or trading facility on
which the Common Stock is or has been listed (or on which it has been quoted) to
the effect that the Company is not in compliance with the listing or maintenance
requirements of such exchange or market. The Company is in compliance with all
such maintenance requirements.
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Stock Purchase Agreement
<PAGE> 8
(r) Patents and Trademarks. The Company has, or has rights to use,
all patents, patent applications, trademarks, trademark applications, service
marks, trade names, copyrights, licenses and rights (collectively, the
"Intellectual Property Rights") which are necessary or material for use in
connection with its business, and which the failure to so have would have a
Material Adverse Effect. To the best knowledge of the Company, all such
Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property Rights.
(s) Registration Rights; Rights of Participation. Except as set
forth on Schedule 6(b) to the Registration Rights Agreement, (i) the Company has
not granted or agreed to grant to any Person any rights (including "piggy-back"
registration rights) to have any securities of the Company registered with the
Commission or any other governmental authority which has not been satisfied and
(ii) no Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents.
(t) Regulatory Permits. The Company and its Subsidiaries possess
all certificates, authorizations and permits issued by the appropriate Federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses as described in the SEC Documents, except where the failure to
possess such permits could not, individually or in the aggregate, have or result
in a Material Adverse Effect ("Material Permits"), and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any Material Permit.
(u) Title. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and personal property owned
by them which is material to the business of the Company and its Subsidiaries,
in each case free and clear of all Liens, except for liens, claims or
encumbrances as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its Subsidiaries. Any real property and facilities held under lease
by the Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its Subsidiaries.
(v) Disclosure. The Company confirms that it has not provided the
Purchaser or its agents or counsel with any information that constitutes or
might constitute material non-public information. The Company understands and
confirms that the Purchaser shall be relying on the foregoing representations in
effecting transactions in securities of the Company. All disclosure provided to
the Purchaser regarding the Company, its business and the transactions
contemplated hereby, including the Schedules to this Agreement, furnished by or
on behalf of the Company are true and correct and do not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
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Stock Purchase Agreement
<PAGE> 9
2.2 Representations and Warranties of the Purchaser. The Purchaser
hereby represents and warrants to the Company as follows:
(a) Organization; Authority. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with the requisite corporate power and
authority, to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations thereunder. The
purchase by the Purchaser of the Securities hereunder has been duly authorized
by all necessary action on the part of the Purchaser. Each of this Agreement and
the Registration Rights Agreement has been duly executed and delivered by the
Purchaser and constitutes the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms.
(b) Investment Intent. The Purchaser is acquiring the Securities
for its own account for investment purposes only and not with a view to or for
distributing or reselling such Securities or any part thereof or interest
therein, without prejudice, however, to the Purchaser's right, subject to the
provisions of this Agreement and the Registration Rights Agreement, at all times
to sell or otherwise dispose of all or any part of such Securities pursuant to
an effective registration statement under the Securities Act and in compliance
with applicable state securities laws or under an exemption from such
registration.
(c) Purchaser Status. At the time the Purchaser was offered the
Shares and the Warrant, it was, and at the date hereof it is, and at each
exercise date under the Warrant, it will be, an "accredited investor" as defined
in Rule 501(a) under the Securities Act.
(d) Experience of the Purchaser. The Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating
the merits and risks of the prospective investment in the Securities, and has so
evaluated the merits and risks of such investment.
(e) Ability of the Purchaser to Bear Risk of Investment. The
Purchaser is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such investment.
(f) Access to Information. The Purchaser acknowledges receipt of
the Disclosure Materials and further acknowledges that it has reviewed the
Disclosure Materials and has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Company and the Company's
financial condition, results of operations, business, proper ties, management
and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information which the Company possesses or
can acquire without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the investment and to verify the
accuracy and completeness of the information contained in the Disclosure
Materials. Neither such inquiries nor any other investigation conducted by or on
behalf of such Purchaser or its representatives or counsel shall modify, amend
or affect such Purchaser's right to rely on the truth, accuracy and completeness
of the Disclosure Materials and the Company's representations and warranties
contained in the Transaction Documents.
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Stock Purchase Agreement
<PAGE> 10
(g) General Solicitation. The Purchaser is not purchasing the
Shares as a result of or subsequent to any advertisement, article, notice or
other communication regarding the Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar.
(h) Reliance. The Purchaser understands and acknowledges that (i)
the Securities are being offered and sold to it without registration under the
Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act and (ii) the availability of such exemption,
depends in part on, and the Company will rely upon the accuracy and truthfulness
of, the foregoing representations and the Purchaser hereby consents to such
reliance.
The Company acknowledges and agrees that the Purchaser makes no
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 2.2.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
3.1 Transfer Restrictions. (a) Securities may only be disposed of
pursuant to an effective registration statement under the Securities Act, to the
Company or pursuant to an available exemption from or in a transaction not
subject to the registration requirements of the Securities Act. In connection
with any transfer of Securities other than pursuant to an effective registration
statement or to the Company, except as otherwise set forth herein, the Company
may require the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred securities under the
Securities Act. Notwithstanding the foregoing, the Company hereby consents to
and agrees to register on the books of the Company and with any transfer agent
for the securities of the Company any transfer of Securities by the Purchaser to
an Affiliate of the Purchaser or to a fund under common management with the
Purchaser, and any transfer among any such Affiliates or funds, provided that
transferee certifies to the Company that it is an "accredited investor" as
defined in Rule 501(a) under the Securities Act and that it is acquiring the
Securities solely for investment purposes. Any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of
a Purchaser under this Agreement and the Registration Rights Agreement.
(b) The Purchaser agrees to the imprinting, so long as is required
by this Section 3.1(b), of the following legend on the Securities:
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE [CONVERTIBLE] [EXERCISABLE] HAVE BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
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Stock Purchase Agreement
<PAGE> 11
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
The Company shall issue Underlying Shares free of the legend set
forth above (and free of any other legend) if the conversion of Shares, the
payment of dividends thereon, or exercise of the Warrant or other issuances of
Underlying Shares as contemplated hereby, by the Articles of Amendment or the
Warrant occurs at any time while an Underlying Securities Registration Statement
is effective under the Securities Act or, in the event there is not an effective
Underlying Securities Registration Statement at such time, if in the opinion of
counsel to the Company such legend is not required under applicable requirements
of the Securities Act (including judicial interpretations and pronouncements
issued by the staff of the Commission). The Company shall cause its counsel to
issue the legal opinion included in the Transfer Agent Instructions to the
Company's transfer agent on the day that the Underlying Securities Registration
Statement is declared effective by the Commission. The Company agrees that it
will provide the Purchaser, upon request, with a certificate or certificates
representing Underlying Shares that may have been issued with the restrictive
legend set forth above, free from such legend at such time as such legend is no
longer required hereunder (for example, there is an effective Underlying
Securities Registration Statement). The Company may not make any notation on its
records or give instructions to any transfer agent of the Company which enlarge
the restrictions of transfer set forth in this Section.
3.2 Acknowledgment of Dilution. The Company acknowledges that the
issuance of the Underlying Shares upon (i) conversion of the Shares and payment
of dividends thereon in accordance with the terms of the Articles of Amendment,
and (ii) exercise of the Warrant in accordance with its terms, may result in
dilution of the outstanding shares of Common Stock, which dilution may be
substantial under certain market conditions. The Company further acknowledges
that its obligation to issue Underlying Shares upon (x) conversion of the Shares
and payment of dividends thereon in accordance with the terms of the Articles of
Amendment, and (y) exercise of the Warrant in accordance with its terms, is
unconditional and absolute, subject to the limitations set forth in the Articles
of Amendment or pursuant to the Warrant, regardless of the effect of any such
dilution.
3.3 Furnishing of Information. So long as the Purchaser owns
Securities, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to Section
13(a) or 15(d) of the Exchange Act. So long as the Purchaser owns Securities, if
the Company is not required to file reports pursuant to such sections, it will
prepare and furnish to the Purchaser and make publicly available in accordance
with Rule 144(c) promulgated under the Securities Act annual and quarterly
financial statements, together with a discussion and analysis of such financial
statements in form and substance substantially similar to those that would
otherwise be required to be included in reports required by Section 13(a) or
15(d) of the Exchange Act, as well as any other information required thereby, in
the time period that such filings would have been required to have been made
under the Exchange Act. The Company further covenants that it will take such
further action as any holder of Securities may reasonably request, all to the
extent required from time to time to enable
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Stock Purchase Agreement
<PAGE> 12
such Person to sell Underlying Shares without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act, including the legal opinion referenced above in this
Section. Upon the request of any such Person, the Company shall deliver to such
Person a written certification of a duly authorized officer as to whether it has
complied with such requirements.
3.4 Blue Sky Laws. In accordance with the Registration Rights
Agreement, the Company shall qualify or exempt the issuance and sale of the
Underlying Shares under the securities or Blue Sky laws of such jurisdictions as
the Purchaser may reasonably request and shall continue such qualification or
exemption at all times until the Purchaser notifies the Company in writing that
it no longer owns Securities; provided, however, that neither the Company nor
its Subsidiaries shall be required in connection therewith to qualify as a
foreign corporation where they are not now so qualified or to take any action
that would subject the Company to general service of process in any such
jurisdiction where it is not then subject.
3.5 Integration. The Company shall not, and shall use its best efforts
to ensure that, no Affiliate shall, sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in Section 2
of the Securities Act) that would be integrated with the offer or sale of the
Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities to the Purchaser.
3.6 Increase in Authorized Shares. Subject to the operation of any
floor that may then be applicable to the Conversion Price in accordance with the
Articles of Amendment, at such times as the Company would be, if a notice of
conversion or exercise (as the case may be) were to be delivered on such date,
precluded from (a) issuing 200% of the number of Underlying Shares as would then
be issuable upon a conversion in full of the Shares and as payment of any
accrued and unpaid dividends in respect thereof in shares of Common Stock, or
(b) honoring the exercise in full of the Warrant, in either case, due to the
unavailability of a sufficient number of shares of authorized but unissued or
reserved Common Stock, the Board of Directors of the Company shall promptly (and
in any case, within 30 Business Days from such date) prepare and mail to the
stockholders of the Company proxy materials requesting authorization to amend
the Company's Certificate of Incorporation to increase the number of shares of
Common Stock which the Company is authorized to issue to at least such number of
shares as reasonably requested by the Purchaser in order to provide for such
number of authorized and unissued shares of Common Stock to enable the Company
to comply with its conversion, exercise and reservation of shares obligations as
set forth in this Agreement, the Articles of Amendment and the Warrant (the sum
of (x) the number of shares of Common Stock then authorized, (y) the number of
shares of Common Stock then outstanding plus all shares of Common Stock issuable
upon exercise of all outstanding options, warrants and convertible instruments
(other than the Underlying Shares), and (z) subject to the operation of any
floor that may then be applicable to the Conversion Price in accordance with the
Articles of Amendment the sum of (i) 200% of the number of Underlying Shares as
are then issuable upon a conversion in full of all Shares and as payment of
dividends thereon, and (ii) the number of Underlying Shares as are issuable upon
exercise in full of the Warrant, shall be a reasonable number). In connection
therewith, the Board of Directors shall (a) adopt proper resolutions authorizing
such increase, (b) recommend to and otherwise use its best efforts to promptly
and duly obtain stockholder
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Stock Purchase Agreement
<PAGE> 13
approval to carry out such resolutions (and hold a special meeting of the
stockholders no later than the 60th day after delivery of the proxy materials
relating to such meeting) and (c) within five (5) Business Days of obtaining
such stockholder authorization, file an appropriate amendment to the Company's
Certificate of Incorporation to evidence such increase.
3.7 Listing and Reservation of Underlying Shares. (a) The Company shall
(i) not later than the fifth Business Day following the Closing Date hereunder
prepare and file with the NASDAQ (or such other national securities exchange or
market or trading or quotation facility on which the Common Stock is then
listed) an additional shares listing application covering a number of shares of
Common Stock which is at least equal to the number of shares required to be
reserved pursuant to Section 2.1(d), (ii) take all steps necessary to cause such
shares to be approved for listing in the NASDAQ (as well as on any such other
national securities exchange or market or trading or quotation facility on which
the Common Stock is then listed) as soon as possible thereafter, and (iii)
provide to the Purchaser evidence of such listing, and the Company shall
maintain the listing of its Common Stock thereon. If the number of Underlying
Shares as are issuable upon conversion in full of the then outstanding Shares,
as payment of dividends thereon, and upon exercise of the then unexercised
portion of the Warrant exceeds 85% of the number of Underlying Shares previously
listed on account thereof with NASDAQ (and such other required exchanges), the
Company shall take the necessary actions to immediately list a number of
Underlying Shares as equals the sum of (x) 200% of the number of Underlying
Shares then issuable upon conversion of the Shares and as payment of dividends
thereon and (y) the number of Underlying Shares as are then issuable upon
exercise of the Warrant.
(b) The Company shall maintain a reserve of Common Stock for
issuance upon conversion of the Shares and for payment of dividends thereupon in
shares of Common Stock pursuant to the terms of the Articles of Amendment and
upon exercise of the Warrant in accordance with its terms, in such amount as may
be required to fulfill obligations in full under the Transaction Documents,
which reserve shall include a number of shares of Common Stock equal to no less
than the Initial Minimum.
3.8 Conversion Procedures. The Transfer Agent Instructions, Conversion
Notice (as defined in Exhibit A) and Notice of Exercise under the Warrant set
forth the totality of the procedures with respect to the conversion of the
Shares and exercise of the Warrant, including the form of legal opinion, if
necessary, that shall be rendered to the Company's transfer agent and such other
information and instructions as may be reasonably necessary to enable the
Purchaser to convert its Shares and exercise the Warrant as contemplated in the
Articles of Amendment and the Warrant (as applicable).
3.9 Notice of Breaches. (a) Each of the Company and the Purchaser shall
give prompt written notice to the other of any breach by it of any
representation, warranty or other agreement contained in any Transaction
Document, as well as any events or occurrences arising after the date hereof
which would reasonably be likely to cause any representation or warranty or
other agreement of such party, as the case may be, contained therein to be
incorrect or breached as of the Closing Date. However, no disclosure by either
party pursuant to this Section shall be deemed to cure any breach of any
representation, warranty or other agreement contained in any Transaction
Document.
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Stock Purchase Agreement
<PAGE> 14
(b) Notwithstanding the generality of Section 3.9(a), the Company
shall promptly notify the Purchaser of any notice or claim (written or oral)
that it receives from any lender of the Company to the effect that the
consummation of the transactions contemplated by the Transaction Documents
violates or would violate any written agreement or understanding between such
lender and the Company, and the Company shall promptly furnish by facsimile to
the holders of the Securities a copy of any written statement in support of or
relating to such claim or notice.
3.10 Conversion and Exercise Obligations of the Company. The Company
shall honor conversions of the Shares and exercises of the Warrant and shall
deliver Underlying Shares in accordance with the respective terms, conditions
and time periods set forth in the respective Articles of Amendment and the
Warrant.
3.11 Right of First Refusal; Subsequent Registrations. (a) Subject to
the provisions of Section 3.11(b), the Company shall not, directly or
indirectly, without the prior written consent of the Purchaser, offer, sell,
grant any option to purchase, or otherwise dispose of (or announce any offer,
sale, grant or any option to purchase or other disposition) any of its or its
Affiliates' equity or equity-equivalent securities in a transaction intended to
be exempt or not subject to registration under the Securities Act (a "Subsequent
Placement") for a period of 360 days after the Closing Date, except (i) the
granting of options or warrants to employees, officers and directors, and the
issuance of shares upon exercise of options granted, under any stock option plan
heretofore or hereinafter duly adopted by the Company, (ii) shares of Common
Stock issued upon exercise of any currently outstanding warrants and upon
conversion of any currently outstanding convertible securities of the Company,
in each case disclosed in Schedule 2.1(c), (iii) Common Stock issued on a
primary basis pursuant to an underwritten public offering, so long as any shares
of Common Stock sold in such underwritten offering are not sold at a price less
than the average of the Per Share Market Values on the five (5) Trading Days
immediately preceding the sale of such Common Stock and (iv) shares of Common
Stock issued upon conversion of Preferred Stock and as payment of dividends
thereon and upon exercise of the Warrant in accordance with the Articles of
Amendment or the Warrant, respectively, unless (A) the Company delivers to the
Purchaser a written notice (the "Subsequent Placement Notice") of its intention
effect such Subsequent Placement, which Subsequent Placement Notice shall
describe in reasonable detail the proposed terms of such Subsequent Placement,
the amount of proceeds intended to be raised thereunder, the Person with whom
such Subsequent Placement shall be effected, and attached to which shall be a
term sheet or similar document relating thereto and (B) the Purchaser shall not
have notified the Company by 5:00 p.m. (New York City time) on the tenth (10th)
Trading Day after its receipt of the Subsequent Placement Notice of its
willingness to provide (or to cause its sole designee to provide), subject to
completion of mutually acceptable documentation, financing to the Company on
substantially the terms set forth in the Subsequent Placement Notice. If the
Purchaser shall fail to notify the Company of its intention to enter into such
negotiations within such time period, the Company may effect the Subsequent
Placement substantially upon the terms and to the Persons (or Affiliates of such
Persons) set forth in the Subsequent Placement Notice; provided, that the
Company shall provide the Purchaser with a second Subsequent Placement Notice,
and the Purchaser shall again have the right of first refusal set forth above in
this paragraph (a), if the Subsequent Placement subject to the initial
Subsequent Placement Notice shall not have been consummated for any reason on
the terms set forth in such Subsequent Placement
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Stock Purchase Agreement
<PAGE> 15
Notice within thirty (30) Trading Days after the date of the initial Subsequent
Placement Notice with the Person (or an Affiliate of such Person) identified in
the Subsequent Placement Notice.
(b) Notwithstanding anything to the contrary contained in Section
3.11(a), the Company may conduct a Subsequent Placement without affording the
Purchaser its right of first refusal set forth in Section 3.11(a) so long as (i)
the amount of capital to be raised is not in excess of $2,000,000, (ii) the only
investors permitted to participate (directly or indirectly) in the Subsequent
Placement described in this Section 3.11(b) (a "Limited Placement") are Persons
that the Company can prove to the Purchaser's satisfaction were beneficial
owners of the capital stock of the Company on the Closing Date, and the
Purchaser, as provided below, (iii) the securities issued in the Limited
Placement may not be resold and no registration statement covering such shares
or the resale thereof may be filed for a period of one (1) year following the
consummation of such Limited Placement and (iii) (A) the Company shall have
delivered to the Purchaser a written notice ("Limited Placement Notice") of its
intention to effect such Limited Placement which Limited Placement Notice shall
describe in reasonable detail the proposed terms of such Limited Placement, the
amount of proceeds intended to be raised thereunder, the Persons with whom such
Limited Placement shall be effected, and attached to which shall be a term sheet
or similar document relating thereto and (B) the Purchaser shall not have
notified the Company by 5:00 p.m. (New York City time) on the third (3rd)
Trading Day after its receipt of the Limited Placement Notice of its willingness
to provide (or to cause its sole designee to provide), subject to completion of
mutually acceptable documentation, up to forty (40%) percent of the financing in
the Limited Placement on substantially the terms set forth in the Limited
Placement Notice. If the Purchaser shall fail to notify the Company of its
intention to enter into such negotiations within such time period, the Company
may effect the Limited Placement substantially upon the terms and to the Persons
set forth in the Limited Placement Notice; provided, that the Company shall
provide the Purchaser with a second Limited Placement Notice, and the Purchaser
shall again have the right of first refusal set forth above in this paragraph
(b)(i), if the Limited Placement subject to the initial Limited Placement Notice
shall not have been consummated for any reason on the terms set forth in such
Limited Placement Notice within thirty (30) Trading Days after the date of the
initial Limited Placement Notice with the Persons identified in the Limited
Placement Notice; and
(c) Except for (x) Underlying Shares, (y) other "Registrable
Securities" (as such term is defined in the Registration Rights Agreement) to be
registered, and securities of the Company permitted pursuant to Schedule 6(b) of
the Registration's Rights Agreement to be registered in the Underlying
Securities Registration in accordance with the Registration Rights Agreement,
and (z) Common Stock to be registered for resale in connection with financings
permitted pursuant to paragraph (a)(i) - (iv) of Section 3.11(a), the Company
shall not, without the prior written consent of the Purchaser (i) issue or sell
any of its or any of its Affiliates' equity or equity-equivalent securities
pursuant to Regulation S promulgated under the Securities Act, or (ii) register
for resale any securities of the Company for a period of not less than 90
Trading Days after the date that the Underlying Securities Registration
Statement is declared effective by the Commission. Any days that a Purchaser is
unable to sell Underlying Securities under the Underlying Securities
Registration Statement shall be added to such 90 Trading Day period for the
purposes of (i) and (ii) above.
-14- Convertible Preferred
Stock Purchase Agreement
<PAGE> 16
3.12 Certain Securities Laws Disclosures; Publicity. The Company shall:
(i) issue a press release acceptable to the Purchaser disclosing the
transactions contemplated hereby on the Closing Date, (ii) file with the
Commission a Report on Form 8-K disclosing the transactions contemplated hereby
within ten (10) Business Days after the Closing Date, and (iii) timely file with
the Commission a Form D promulgated under the Securities Act as required under
Regulation D promulgated under the Securities Act and provide a copy thereof to
the Purchaser promptly after the filing thereof. The Company shall, no less than
two (2) Business Days prior to the filing of any disclosure required by clauses
(ii) and (iii) above, provide a copy thereof to Purchaser. No such filing or
disclosure may be made that mentions the Purchaser by name without the prior
consent of Purchaser.
3.13 Use of Proceeds. The Company shall use the net proceeds from the
sale of the Securities hereunder for working capital purposes and not for the
satisfaction of any portion of Company debt or to redeem any Company equity or
equity-equivalent securities. Pending application of the proceeds of this
placement in the manner permitted hereby, the Company will invest such proceeds
in interest bearing accounts and/or short-term, investment grade interest
bearing securities.
3.14 Transfer of Intellectual Property Rights. Except in connection
with the sale of all or substantially all of the assets of the Company, the
Company shall not transfer, sell or otherwise dispose of any Intellectual
Property Rights, or allow any of the Intellectual Property Rights to become
subject to any Liens, or fail to renew such Intellectual Property Rights (if
renewable and it would otherwise lapse if not renewed), without the prior
written consent of the Purchaser.
3.15 Reimbursement. If the Purchaser, other than by reason of its gross
negligence or willful misconduct, becomes involved in any capacity in any
action, proceeding or investigation brought by or against any Person, including
stockholders of the Company, in connection with or as a result of the
consummation of the transactions contemplated by Transaction Documents, the
Company will reimburse the Purchaser for its reasonable legal and other expenses
(including the cost of any investigation and preparation) incurred in connection
therewith, as such expenses are incurred. In addition, other than with respect
to any matter in which the Purchaser is a named party, the Company will pay the
Purchaser the charges, as reasonably determined by the Purchaser, for the time
of any officers or employees of the Purchaser devoted to appearing and preparing
to appear as witnesses, assisting in preparation for hearings, trials or
pretrial matters, or otherwise with respect to inquiries, hearings, trials, and
other proceedings relating to the subject matter of this Agreement. The
reimbursement obligations of the Company under this paragraph shall be in
addition to any liability which the Company may otherwise have, shall extend
upon the same terms and conditions to any Affiliates of the Purchaser who are
actually named in such action, proceeding or investigation, and partners,
directors, agents, employees and controlling persons (if any), as the case may
be, of the Purchaser and any such Affiliate, and shall be binding upon and inure
to the benefit of any successors, assigns, heirs and personal representatives of
the Company, the Purchaser and any such Affiliate and any such Person. The
Company also agrees that neither the Purchaser nor any such Affiliates,
partners, directors, agents, employees or controlling persons shall have any
liability to the Company or any person asserting claims on behalf of or in right
of the Company in connection with or as a result of the consummation of the
Transaction Documents except to the extent that any losses, claims, damages,
liabilities or expenses incurred by the Company result from the gross negligence
or willful
-15- Convertible Preferred
Stock Purchase Agreement
<PAGE> 17
misconduct of the Purchaser or entity in connection with the transactions
contemplated by this Agreement.
3.16 Indemnification by the Company. The Company shall, notwithstanding
any termination of this Agreement, indemnify and hold harmless the Purchaser,
the officers, directors, agents, brokers, investment advisors and employees of
the Purchaser, each Person who controls the Purchaser (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, agents and employees of each such controlling Person, to
the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and attorneys' fees) and expenses, as incurred, arising out
of or relating the inaccuracy of any of the representations and warranties of
the Company set forth in Section 2.1 hereto.
3.17 Delivery of Opinion. Within 30 calendar days of the Closing Date,
the Company shall deliver or cause to be delivered to the Company a legal
opinion of outside counsel to the Company reasonably acceptable to the
Purchaser, substantially in the form of Exhibit C. If the Company fails to
deliver to the Purchaser the legal opinion referenced in this Section within 30
calendar days of the Closing Date, the Company shall pay to the Purchaser, in
cash, as liquidated damages and not as a penalty, $20,000 for each day
thereafter ("Opinion Damages") until the Company delivers such legal opinion to
the Purchaser. The Opinion Damages shall be payable weekly to the Purchaser.
ARTICLE IV
MISCELLANEOUS
4.1 Fees and Expenses. At the Closing the Company shall pay $15,000 to
the Escrow Agent in connection with the preparation and negotiation of the
Transaction Documents. Other than the amounts contemplated in the immediately
preceding sentence, and except as otherwise set forth in the Registration Rights
Agreement, each party shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement. The Company shall pay all stamp and other taxes
and duties levied in connection with the issuance of the Securities.
4.2 Entire Agreement; Amendments. This Agreement, together with the
Exhibits and Schedules hereto, the Registration Rights Agreement, the Articles
of Amendment, the Transfer Agent Instructions and the Warrant contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
4.3 Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile
-16- Convertible Preferred
Stock Purchase Agreement
<PAGE> 18
at the facsimile telephone number specified in this Section prior to 8:00 p.m.
(New York City time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified below later than 8:00 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the Business Day following the date of mailing, if sent by nationally
recognized overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given. The address for such notices and
communications shall be as follows:
If to the Company: Tanisys Technology, Inc.
12201 Technology Blvd., Suite 125
Austin, TX 78727-6101
Facsimile No.: (512) 257-5351
Attention: Chief Financial Officer
With copies to: Mr. Andie Long
c/o Billing Concepts Corp.
7411 John Smith Drive, Suite 1500
San Antonio, TX 78229
Facsimile No.: (210) 949-7024
If to the
Purchaser: KA Investments LDC
1712 Hopkins Crossroads
Minnetonka, MN 55305
Facsimile No.: (612) 542-4284
Attention: Mr. Bruce Lieberman
With copies to: Robinson Silverman Pearce Aronsohn &
Berman LLP
1290 Avenue of the Americas
New York, NY 10104
Facsimile No.: (212) 541-4630
Attn: Kenneth L. Henderson
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
4.4 Amendments; Waivers. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by both the Company and the Purchaser; or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
-17- Convertible Preferred
Stock Purchase Agreement
<PAGE> 19
4.5 Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
4.6 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchaser. Except as set forth in
Section 3.1(a), the Purchaser may not assign this Agreement or any of the rights
or obligations hereunder (other than to an Affiliate of the Purchaser) without
the consent of the Company, except that the Purchaser may assign its rights
hereunder and under the Transaction Documents without the consent of the Company
so long as such assignee demonstrates to the reasonable satisfaction of the
Company its satisfaction of the representations and warranties set forth in
Section 2.2. This provision shall not limit the Purchaser's right to transfer
securities or transfer or assign rights hereunder or under the Registration
Rights Agreement.
4.7 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns, is not for the benefit of, nor may any provision hereof be enforced by,
any other Person.
4.8 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of the any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
4.9 Survival. The representations, warranties, agreements and covenants
contained herein shall survive the Closing and the delivery and conversion or
exercise (as the case may be) of the Shares and the Warrant.
4.10 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
-18- Convertible Preferred
Stock Purchase Agreement
<PAGE> 20
4.11 Publicity. The Company and the Purchaser shall consult with each
other in issuing any press releases or otherwise making public statements or
filings and other communications with the Commission or any regulatory agency or
stock market or trading facility with respect to the transactions contemplated
hereby and neither party shall issue any such press release or otherwise make
any such public statement, filings or other communications without the prior
written consent of the other, which consent shall not be unreasonably withheld
or delayed, except that no prior consent shall be required if such disclosure is
required by law, in which such case the disclosing party shall provide the other
party with prior notice of such public statement, filing or other communication.
Notwithstanding the foregoing, the Company shall not publicly disclose the name
of the Purchaser, or include the name of the Purchaser in any filing with the
Commission, or any regulatory agency, trading facility or stock market without
the prior written consent of Purchaser, except to the extent such disclosure
(but not any disclosure as to the controlling Persons thereof) is required by
law, in which case the Company shall provide the Purchaser with prior notice of
such disclosure.
4.12 Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
4.13 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, the Purchaser
will be entitled to specific performance of the obligations of the Company under
the Transaction Documents. Each of the Company and the Purchaser agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of its obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
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Stock Purchase Agreement
<PAGE> 21
IN WITNESS WHEREOF, the parties hereto have caused this Convertible
Preferred Stock Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated above.
TANISYS TECHNOLOGY, INC.
By:
----------------------------------
Name:
Title:
KA INVESTMENTS LDC
By:
----------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 10.2
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.
TANISYS TECHNOLOGY, INC.
WARRANT
Dated: June 30, 1998
Tanisys Technology, Inc., a Wyoming corporation (the "Company"), hereby
certifies that, for value received, ______________, or its registered assigns
("Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company up to a total of ________ shares of Common Stock, no par value (the
"Common Stock"), of the Company (each such share, a "Warrant Share" and all such
shares, the "Warrant Shares") at an exercise price equal to $3.00 per share (as
adjusted from time to time as provided in Section 9, the "Exercise Price"), at
any time and from time to time from and after the date hereof and through and
including June 30, 2002 (the "Expiration Date"), and subject to the following
terms and conditions:
1. Registration of Warrant. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the "Warrant
Register"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be affected by
notice to the contrary.
2. Registration of Transfers and Exchanges.
(a) The Company shall register the transfer of any portion of this
Warrant in the Warrant Register, upon surrender of this Warrant, with the Form
of Assignment
<PAGE> 2
attached hereto duly completed and signed, to the Transfer Agent
or to the Company at the office specified in or pursuant to Section 3(b). Upon
any such registration or transfer, a new warrant to purchase Common Stock, in
substantially the form of this Warrant (any such new warrant, a "New Warrant"),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance of such transferee of all of the rights and obligations of a holder
of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof by the
Holder to the office of the Company specified in or pursuant to Section 3(b) for
one or more New Warrants, evidencing in the aggregate the right to purchase the
number of Warrant Shares which may then be purchased hereunder. Any such New
Warrant will be dated the date of such exchange.
3. Duration and Exercise of Warrants.
(a) This Warrant shall be exercisable by the registered Holder on
any business day before 5:30 P.M., Eastern time, at any time and from time to
time on or after the date hereof to and including the Expiration Date. At 5:30
P.M., Eastern time on the Expiration Date, the portion of this Warrant not
exercised prior thereto shall be and become void and of no value. Prior to the
Expiration Date, the Company may not call or otherwise redeem this Warrant
without the prior written consent of the Holder.
(b) Subject to Sections 2(b), 6 and 10, upon surrender of this
Warrant, with the Form of Election to Purchase attached hereto duly completed
and signed, to the Company at its address for notice set forth in Section 12 and
upon payment of the Exercise Price multiplied by the number of Warrant Shares
that the Holder intends to purchase hereunder, in lawful money of the United
States of America, in cash or by certified or official bank check or checks, all
as specified by the Holder in the Form of Election to Purchase, the Company
shall promptly (but in no event later than 3 business days after the Date of
Exercise) issue or cause to be issued and cause to be delivered to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate for the Warrant Shares issuable upon such exercise,
free of restrictive legends other than as required by applicable law. Any person
so designated by the Holder to receive Warrant Shares shall be deemed to have
become holder of record of such Warrant Shares as of the Date of Exercise of
this Warrant.
A "Date of Exercise" means the date on which the Company shall have
received (i) this Warrant (or any New Warrant, as applicable), with the Form of
Election to Purchase attached hereto (or attached to such New Warrant)
appropriately completed and duly signed, and (ii) payment of the Exercise Price
for the number of Warrant Shares so indicated by the holder hereof to be
purchased.
-2-
<PAGE> 3
(c) This Warrant shall be exercisable, either in its entirety or,
from time to time, for a portion of the number of Warrant Shares. If less than
all of the Warrant Shares which may be purchased under this Warrant are
exercised at any time, the Company shall issue or cause to be issued, at its
expense, a New Warrant evidencing the right to purchase the remaining number of
Warrant Shares for which no exercise has been evidenced by this Warrant.
4. Piggyback Registration Rights. During the term of this Warrant, the
Company may not file any registration statement with the Securities and Exchange
Commission (other than registration statements of the Company filed on Form S-8
or Form S-4, each as promulgated under the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to which the Company is registering securities
pursuant to a Company employee benefit plan or pursuant to a merger, acquisition
or similar transaction including supplements thereto, but not additionally filed
registration statements in respect of such securities) at any time when there is
not an effective registration statement covering the resale of the Warrant
Shares and naming the Holder as a selling stockholder thereunder, unless the
Company provides the Holder with not less than 20 days notice of its intention
to file such registration statement and provides the Holder the option to
include any or all of the applicable Warrant Shares therein. The piggyback
registration rights granted to the Holder pursuant to this Section shall
continue until all of the Holder's Warrant Shares have been sold in accordance
with an effective registration statement or upon the Expiration Date. The
Company will pay all registration expenses in connection therewith.
5. Demand Registration Rights. At any time during the term of this
Warrant when the Warrant Shares are not registered pursuant to an effective
registration statement, the Holder may make a written request for the
registration under the Securities Act (a "Demand Registration"), of all of the
Warrant Shares (the "Registrable Securities"), and the Company shall use its
best efforts to effect such Demand Registration as promptly as possible, but in
any case within 90 days thereafter. Any request for a Demand Registration shall
specify the aggregate number of Registrable Securities proposed to be sold and
shall also specify the intended method of disposition thereof. The right to
cause a registration of the Registrable Securities under this Section 5 shall be
limited to one such registration. In any registration initiated as a Demand
Registration, the Company will pay all of its registration expenses in
connection therewith. A Demand Registration shall not be counted as a Demand
Registration hereunder until the registration statement filed pursuant to the
Demand Registration has been declared effective by the Securities and Exchange
Commission and maintained continuously effective for a period of at least 360
days or such shorter period when all Registrable Securities included therein
have been sold in accordance with such registration statement, provided, however
that any days on which such registration statement is not effective or on which
the Holder is not permitted by the Company or any governmental authority to sell
Warrant Shares under such registration statement shall not count towards such
360 day period.
6. Payment of Taxes. The Company will pay all documentary stamp taxes
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; provided, however, that the Company shall not be required to pay any
tax which may be payable in respect
-3-
<PAGE> 4
of any transfer involved in the registration of any certificates for Warrant
Shares or Warrants in a name other than that of the Holder, and the Company
shall not be required to issue or cause to be issued or deliver or cause to be
delivered the certificates for Warrant Shares unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid. The Holder shall be responsible for all other tax
liability that may arise as a result of holding or transferring this Warrant or
receiving Warrant Shares upon exercise hereof.
7. Replacement of Warrant. If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and indemnity, if
requested, satisfactory to it. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable regulations and
procedures and pay such other reasonable charges as the Company may prescribe.
8. Reservation of Warrant Shares. The Company covenants that it will at
all times reserve and keep available out of the aggregate of its authorized but
unissued Common Stock, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of this Warrant as herein provided, the number of Warrant
Shares which are then issuable and deliverable upon the exercise of this entire
Warrant, free from preemptive rights or any other actual contingent purchase
rights of persons other than the Holder (taking into account the adjustments and
restrictions of Section 9). The Company covenants that all Warrant Shares that
shall be so issuable and deliverable shall, upon issuance and the payment of the
applicable Exercise Price in accordance with the terms hereof, be duly and
validly authorized, issued and fully paid and nonassessable.
9. Certain Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 9. Upon each such adjustment of the Exercise
Price pursuant to this Section 9, the Holder shall thereafter prior to the
Expiration Date be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of Warrant Shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(a) If the Company, at any time while this Warrant is outstanding,
(i) shall pay a stock dividend (except scheduled dividends paid on outstanding
preferred stock as of the date hereof which contain a stated divided rate) or
otherwise make a distribution or distributions on shares of its Common Stock (as
defined below) or on any other class of capital stock and not the Common Stock)
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock into a larger number of shares, or (iii) combine outstanding shares of
Common Stock into a smaller number of shares, the Exercise Price shall be
multiplied by a
-4-
<PAGE> 5
fraction of which the numerator shall be the number of shares of Common Stock
(excluding treasury shares, if any) outstanding before such event and of which
the denominator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding after such event. Any adjustment made
pursuant to this Section shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination, and shall apply to successive
subdivisions and combinations.
(b) In case of any reclassification of the Common Stock, any
consolidation or merger of the Company with or into another person, the sale or
transfer of all or substantially all of the assets of the Company or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of
Common Stock following such reclassification, consolidation, merger, sale,
transfer or share exchange, and the Holder shall be entitled upon such event to
receive such amount of securities or property equal to the amount of Warrant
Shares such Holder would have been entitled to had such Holder exercised this
Warrant immediately prior to such reclassification, consolidation, merger, sale,
transfer or share exchange. The terms of any such consolidation, merger, sale,
transfer or share exchange shall include such terms so as to continue to give to
the Holder the right to receive the securities or property set forth in this
Section 9(b) upon any exercise following any such reclassification,
consolidation, merger, sale, transfer or share exchange.
(c) If the Company, at any time while this Warrant is outstanding,
shall distribute to all holders of Common Stock (and not to holders of this
Warrant) evidences of its indebtedness or assets or rights or warrants to
subscribe for or purchase any security (excluding those referred to in Sections
9(a), (b) and (d)), then in each such case the Exercise Price shall be
determined by multiplying the Exercise Price in effect immediately prior to the
record date fixed for determination of stockholders entitled to receive such
distribution by a fraction of which the denominator shall be the Exercise Price
determined as of the record date mentioned above, and of which the numerator
shall be such Exercise Price on such record date less the then fair market value
at such record date of the portion of such assets or evidence of indebtedness so
distributed applicable to one outstanding share of Common Stock as determined by
the Company's independent certified public accountants that regularly examines
the financial statements of the Company (an "Appraiser").
(d) If, at any time while this Warrant is outstanding, the Company
shall issue or cause to be issued rights or warrants to acquire or otherwise
sell or distribute shares of Common Stock to all holders of Common Stock for a
consideration per share less than the Exercise Price then in effect, then,
forthwith upon such issue or sale, the Exercise Price shall be reduced to the
price (calculated to the nearest cent) determined by multiplying the Exercise
Price in effect immediately prior thereto by a fraction, the numerator of which
shall be the sum of (i) the number of shares of Common Stock outstanding
immediately prior to such issuance, and (ii) the number
-5-
<PAGE> 6
of shares of Common Stock which the aggregate consideration received (or to be
received, assuming exercise or conversion in full of such rights, warrants and
convertible securities) for the issuance of such additional shares of Common
Stock would purchase at the Exercise Price, and the denominator of which shall
be the sum of the number of shares of Common Stock outstanding immediately after
the issuance of such additional shares. Such adjustment shall be made
successively whenever such an issuance is made.
(e) For the purposes of this Section 9, the following clauses shall
also be applicable:
(i) Record Date. In case the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Common Stock or in securities
convertible or exchangeable into shares of Common Stock, or (B) to subscribe for
or purchase Common Stock or securities convertible or exchangeable into shares
of Common Stock, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase, as the
case may be.
(ii) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(f) All calculations under this Section 9 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(g) Whenever the Exercise Price is adjusted pursuant to Section 9(c)
above, the Holder, after receipt of the determination by the Appraiser, shall
have the right to select an additional appraiser (which shall be a nationally
recognized accounting firm), in which case the adjustment shall be equal to the
average of the adjustments recommended by each of the Appraiser and such
appraiser. The Holder shall promptly mail or cause to be mailed to the Company,
a notice setting forth the Exercise Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment. Such adjustment
shall become effective immediately after the record date mentioned above.
(h) If:
(i) the Company shall declare a dividend (or any other
distribution) on its Common Stock; or
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<PAGE> 7
(ii) the Company shall declare a special nonrecurring cash
dividend on or a redemption of its Common Stock; or
(iii) the Company shall authorize the granting to all holders of
the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights; or
(iv) the approval of any stockholders of the Company shall be
required in connection with any reclassification of the Common Stock of the
Company, any consolidation or merger to which the Company is a party, any sale
or transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property; or
(v) the Company shall authorize the voluntary dissolution,
liquidation or winding up of the affairs of the Company,
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant Register, at least 30 calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up; provided, however, that the failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.
10. Payment of Exercise Price. The Holder may pay the Exercise Price in
one of the following manners:
(a) Cash Exercise. The Holder shall deliver immediately available
funds; or
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<PAGE> 8
(b) Cashless Exercise. The Holder shall surrender this Warrant to
the Company together with a notice of cashless exercise, in which event the
Company shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y (A-B)/A
where:
X = the number of Warrant Shares to be issued to the
Holder.
Y = the number of Warrant Shares with respect to which
this Warrant is being exercised.
A = the average of the closing sale prices of the Common
Stock for the five (5) trading days immediately prior to
(but not including) the Date of Exercise.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have been
commenced, on the issue date.
11. Fractional Shares. The Company shall not be required to issue or
cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares which shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section 11, be issuable
on the exercise of this Warrant, the Company shall pay an amount in cash equal
to the Exercise Price multiplied by such fraction.
12. Notices. Any and all notices or other communications or
deliveries hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Section prior to 4:30 p.m. (Eastern time) on a business day, (ii) the business
day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile telephone number specified in this Section later
than 4:30 p.m. (Eastern time) on any date and earlier than 11:59 p.m. (Eastern
time) on such date, (iii) the business day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The addresses
for such communications shall be: (i) if to the Company, to 12201 Technolgy
Blvd., Suite 125, Austin, TX 78727-6101 Attention: Chief Financial Officer, or
to facsimile no. (512) 257-5351, or (ii) if to the Holder, to the Holder at the
address or facsimile number appearing on
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<PAGE> 9
the Warrant Register or such other address or facsimile number as the Holder may
provide to the Company in accordance with this Section 12.
13. Warrant Agent.
(a) The Company shall serve as warrant agent under this Warrant.
Upon thirty (30) days' notice to the Holder, the Company may appoint a new
warrant agent.
(b) Any corporation or other entity into which the Company or
any new warrant agent may be merged or any corporation or other entity resulting
from any consolidation to which the Company or any new warrant agent shall be a
party or any corporation or other entity to which the Company or any new warrant
agent transfers substantially all of its corporate trust or shareholders
services business shall be a successor warrant agent under this Warrant without
any further act. Any such successor warrant agent shall promptly cause notice of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder's last address as shown on the Warrant
Register.
14. Miscellaneous.
(a) This Warrant shall be binding on and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. This
Warrant may be amended only in writing signed by the Company and the Holder.
(b) Subject to Section 14(a), above, nothing in this Warrant
shall be construed to give to any person or corporation other than the Company
and the Holder any legal or equitable right, remedy or cause under this Warrant.
This Warrant shall inure to the sole and exclusive benefit of the Company and
the Holder.
(c) This Warrant shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York without regard to
the principles of conflicts of law thereof.
(d) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
(e) In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
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<PAGE> 10
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its authorized officer as of the date first indicated above.
TANISYS TECHNOLOGY, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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<PAGE> 12
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares of Common
Stock under the foregoing Warrant)
To Tanisys Technology, Inc.:
In accordance with the Warrant enclosed with this Form of Election to
Purchase, the undersigned hereby irrevocably elects to purchase _____________
shares of Common Stock ("Common Stock"), no par value, of Tanisys Technology,
Inc. and , if such Holder is not utilizing the cashless exercise provisions set
forth in this Warrant, encloses herewith $________ in cash, certified or
official bank check or checks, which sum represents the aggregate Exercise Price
(as defined in the Warrant) for the number of shares of Common Stock to which
this Form of Election to Purchase relates, together with any applicable taxes
payable by the undersigned pursuant to the Warrant.
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address)
If the number of shares of Common Stock issuable upon this exercise
shall not be all of the shares of Common Stock which the undersigned is entitled
to purchase in accordance with the enclosed Warrant, the undersigned requests
that a New Warrant (as defined in the Warrant) evidencing the right to purchase
the shares of Common Stock not issuable pursuant to the exercise evidenced
hereby be issued in the name of and delivered to:
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated: _________________, ______
Name of Holder:
(Print)
-----------------------------
(By:)
-------------------------------
(Name:)
(Title:)
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
<PAGE> 13
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________ the right represented by the
within Warrant to purchase ____________ shares of Common Stock of Tanisys
Technology, Inc. to which the within Warrant relates and appoints
________________ attorney to transfer said right on the books of Tanisys
Technology, Inc. with full power of substitution in the premises.
Dated:
_________________, ______
---------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
---------------------------------------
Address of Transferee
---------------------------------------
---------------------------------------
In the presence of:
- --------------------------
<PAGE> 1
EXHIBIT 23.2
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated October 24, 1997,
included in the Tanisys Technology, Inc., Annual Report on Form 10-K for the
year ended September 30, 1997, and to all references to our firm included in
this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
San Antonio, Texas
August 10, 1998
