Tivus, Inc. (TIVU)

[jpr1969]

SP officially announced in the CC that management had made the decision to increase authorized shares to 6 Billion. We already knew this because some rather savvy individual actually made a phone call, and got that info within a few days of it occurring. SP stated that this was necessary for the company to move forward and meet the financial obligations in order to meet specific milestones for positioning TiVUS for the future. While I do believe that that might have been the best option available to TiVUS at the time, I was fairly certain that it requires a vote by the shareholders for that to happen. TiVUS certainly has a list of SHAREHOLDERS Names and number of shares held.

http://www.startupcompanylawyer.com/2007/08/07/what-stockholder-approval-is-necessary-to-complete-a-venture-financing/

What stockholder approval is necessary to complete a venture financing? August 7, 2007

Most venture financings require the creation and issuance of a new series of preferred stock. This typically requires an amendment of a company’s Certificate of Incorporation in Delaware (or Articles of Incorporation in California). The stockholder vote requirements for these actions are governed by state law and the Company’s charter (COI or AOI) and bylaws. The stockholder vote requirements under Delaware law and California law are outlined below.

Delaware

General. Delaware corporate law provides that an amendment to the Certificate of Incorporation requires the approval of a majority of the outstanding stock entitled to vote and at least a majority of the outstanding stock of each class entitled to vote as a class. (For example, common stock is a class, and preferred stock is a class.) The shares and classes entitled to vote are determined by the Certificate of Incorporation.
Class Vote Requirements. Delaware corporate law provides that a “class vote” is required if the amendment to the Certificate of Incorporation does any of the following:
• Increases or decreases the par value of the shares of the affected class(es) (subject to certain limited exceptions);
• Increases or decreases the aggregate number of authorized shares of the affected class(es); or
• Adversely affects the powers, preferences, or special rights of the shares of such class.
For the purposes of the class vote, different series of the same class are not treated as a separate class unless the amendment to the Certificate of Incorporation adversely affects the powers, preferences or special rights of such series. The position of a class or series of shares relative to other classes or series is not a power, preference, or special right of the shares, so that the provisions granting a class vote where the powers, preferences, or special rights are affected adversely do not apply to an amendment that creates a class or series with rights, powers and preferences prior to those of one or more existing classes or series of stock.
Though not expressly required under Delaware law, the holders of common stock often have a vote when new senior preferred stock is issued. This is because the corporation typically needs to increase the authorized number of common shares to allow for the future conversion of the newly issued preferred stock into common stock. If the corporation already has sufficient authorized common stock to allow for the conversion of the new preferred stock, a new class of preferred stock could be created without common stockholder approval. In addition, the number of authorized shares of common stock may be increased by a vote of the majority of the outstanding stock of the corporation if the Certificate of Incorporation allows. Most typical Certificates of Incorporation for venture-backed companies provide for this flexibility to avoid a separate common stockholder vote in a future venture financing.

Practical answer.
Generally, the necessary stockholder approval for a venture financing for a Delaware corporation (assuming properly drafted articles avoiding a separate common vote) will be (i) a majority of all shares on an as converted to common basis (due to the general stockholder approval requirement to amend the Certificate of Incorporation under Delaware law), (ii) a majority of all preferred stock on an as converted to common basis (due to the need to authorize additional preferred stock triggering a class vote), and (iii) any other approval required by the protective provisions in the Certificate of Incorporation, such as a separate series approval or super-majority approval.

Where is the official count for that vote? Why was I not allowed to vote? Does management even hold enough of the previous 3 Billion shares to make that vote on its own. Even if We don't have enough votes to stop it, as shareholders, We have the right to voice our opposition, and be heard on the matter. I wonder how many shares as IHUB posters we own collectively?

Any one with more knowledge on this subject want to weigh in here, Please?