EXHIBIT 3.10
BY-LAW NO. 1-A
A by-law relating generally to the transaction
of the business and affairs of
ASTRIS ENERGI INC.
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Contents
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One - Interpretation
Two - Business of the Corporation
Three - Borrowing and Security
Four - Directors
Five - Committees
Six - Officers
Seven - Protection of Directors, Officers and Others
Eight - Shares
Nine - Dividends and Rights
Ten - Meetings of Shareholders
Eleven - Notices
Twelve - Effective Date and Repeal
BE IT ENACTED as a by-law of the Corporation as follows:
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SECTION ONE
INTERPRETATION
1.01 Definitions. - In the by-laws of the Corporation, unless the context
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otherwise requires:
"Act" means the Business Corporations Act (Ontario), or any statute that
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may be substituted therefor, as from time to time amended;
"appoint" includes "elect" and vice versa;
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"articles" means the articles on which is endorsed the certificate of
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Continuance of the Corporation as from time to time amended or restated;
"board" means the board of directors of the Corporation and "director"
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means a member of the board;
"by-laws" means this by-law and all other by-laws of the Corporation from
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time to time in force and effect;
"Corporation" means the corporation continued under the Act by the said
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certificate endorsed on the articles and named "Astris Energi Inc.";
"meeting of shareholders" includes an annual meeting of shareholders and a
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special meeting of shareholders; and "special meeting of shareholders"
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includes a meeting of any class or classes of shareholders and a special
meeting of all shareholders entitled to vote at an annual meeting of
shareholders; and
"recorded address" has the meaning set forth in section 11.08.
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Save as aforesaid, words and expressions defined in the Act, including "resident
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Canadian" and "unanimous shareholder agreement", have the same meanings when
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used herein. Words importing the singular number include the plural and vice
versa; and words importing a person include an individual, sole proprietorship,
partnership, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, body corporate, and a natural person in his
capacity as trustee, executor, administrator, or other legal representative.
1.02 Unanimous Shareholder Agreement. - The provisions of the by-laws shall
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be subject to any unanimous shareholder agreement entered into from time to
time.
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SECTION TWO
BUSINESS OF THE CORPORATION
2.01 Registered Office. - The registered office of the Corporation shall be
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in the municipality or geographic township within Ontario initially specified in
its articles and thereafter as the shareholders may from time to time determine
by special resolution and at such location therein as the board may from time to
time determine.
2.02 Corporate Seal. - The Corporation may, but need not have, a corporate
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seal and if one is adopted it shall be in a form approved from time to time by
the board.
2.03 Financial Year. - Until changed by the board, the financial year of
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the Corporation shall end on the last day of December in each year.
2.04 Execution of Instruments. - Deeds, transfers, assignments, contracts,
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obligations, certificates and other instruments may be signed on behalf of the
Corporation by two persons, one of whom holds the office of chair of the board,
managing director, president, vice-president or is a director and the other of
whom is a director or holds one of the said offices or the office of secretary,
treasurer, assistant secretary or assistant treasurer or any other office
created by by-law or by the board. In addition, the board or the said two
persons may from time to time direct the manner in which and the person or
persons by whom any particular instrument or class of instruments may or shall
be signed. Any signing officer may affix the corporate seal to any instrument
requiring the same.
2.05 Banking Arrangements. - The banking business of the Corporation
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including, without limitation, the borrowing of money and the giving of security
therefor, shall be transacted with such banks, trust companies or other bodies
corporate or organizations as may from time to time be designated by or under
the authority of the board. Such banking business or any part thereof shall be
transacted under such agreements, instructions and delegations of powers as the
board may from time to time prescribe.
2.06 Voting Rights in Other Bodies Corporate. - The signing officers of the
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Corporation under section 2.04 may execute and deliver proxies and arrange for
the issuance of voting certificates or other evidence of the right to exercise
the voting rights attaching to any securities held by the Corporation. Such
instruments shall be in favour of such persons as may be determined by the
officers executing or arranging for the same. In addition, the board may from
time to time direct the mariner in which and the persons by whom any particular
voting rights or class of voting rights may or shall be exercised.
2.07 Divisions. - The board may cause the business and operations of the
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Corporation or any part thereof to be divided into one or more divisions upon
such basis, including without limitation types of business or operations,
geographical territories, product lines or goods or services, as may be
considered appropriate in each case. In connection with any such division the
board or, subject to any direction by the board, the chief executive officer may
authorize from time to time, upon such basis as may be considered appropriate in
each case:
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(a) Subdivision and Consolidation - the further division of the business
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and operations of any such division into sub-units and the
consolidation of the business and operations of any such divisions and
sub-units;
(b) Name - the designation of any such division or sub-unit by, and the
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carrying on of the business and operations of any such division or
sub-unit under, a name other than the name of the Corporation;
provided that the Corporation shall set out its name in legible
characters in all places required by law; and
(c) Officers - the appointment of officers for any such division or
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sub-unit, the determination of their powers and duties, and the
removal of any of such officers so appointed, provided that any such
officers shall not, as such, be officers of the Corporation.
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<PAGE>
SECTION THREE
BORROWING AND SECURITY
3.01 Borrowing Power. - Without limiting the borrowing powers of the
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Corporation as set forth in the Act, but subject to the articles and any
unanimous shareholder agreement, the board may from time to time on behalf of
the Corporation, without authorization of the shareholders:
(a) borrow money upon the credit of the Corporation;
(b) issue, reissue, sell or pledge bonds, debentures, notes or other
evidences of indebtedness or guarantee of the Corporation, whether
secured or unsecured;
(c) to the extent permitted by the Act, give directly or indirectly
financial assistance to any person by means of a loan, a guarantee or
otherwise on behalf of the Corporation to secure performance of any
present or future indebtedness, liability or obligation of any person;
and
(d) mortgage, hypothecate, pledge or otherwise create a security interest
in all or any currently owned or subsequently acquired real or
personal, movable or immovable, property of the Corporation including
book debts, rights, powers, franchises and undertakings, to secure any
such bonds, debentures, notes or other evidences of indebtedness or
guarantee or any other present or future indebtedness, liability or
obligation of the Corporation.
Nothing in this section limits or restricts the borrowing of money by the
Corporation on bills of exchange or promissory notes made, drawn, accepted or
endorsed by or on behalf of the Corporation.
3.02 Delegation. - Unless the articles of the Corporation otherwise
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provide, the board may from time to time delegate to a director, a committee of
the board, or an officer of the Corporation any or all of the powers conferred
on the board by section 3.01 to such extent and in such manner as the board may
determine at the time of such delegation.
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<PAGE>
SECTION FOUR
DIRECTORS
4.01 Number of Directors. - Until changed in accordance with the Act, the
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board shall consist of not fewer than the minimum number and not more than the
maximum number of directors provided in the articles.
4.02 Qualification. - No person shall be qualified for election as a
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director if such person is less than 18 years of age, is of unsound mind and has
been so found by a court in Canada or elsewhere, is not an individual, or has
the status of a bankrupt. A director need not be a shareholder. No election of a
person as a director shall be effective unless the person consents in writing on
or within ten days after the date of the election. A majority of the directors
shall be resident Canadians. At least one-third of the directors shall not be
officers or employees of the Corporation or any of its affiliates.
4.03 Election and Term. - Each director named in the articles shall hold
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office from the date of incorporation until the first meeting of shareholders.
The election of directors shall take place at each annual meeting of
shareholders and all the directors then in office shall retire but, if
qualified, shall be eligible for re-election. Subject to the Act, the number of
directors to be elected at any such meeting shall be the number of directors,
determined from time to time by special resolution or, if the special resolution
empowers the directors to determine the number, by resolution of the board.
Where the shareholders adopt an amendment to the articles to increase the number
or maximum number of directors, the shareholders may, at the meeting at which
they adopt the amendment, elect the additional number of directors authorized by
the amendment to take office from the effective date of the endorsement of the
articles of amendment with respect thereto. The election shall be by resolution.
If an election of directors is not held at the proper time, the incumbent
directors shall continue in office until their successors are elected.
4.04 Removal of Directors. - Subject to the Act, the shareholders may by
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ordinary resolution passed at an annual or special meeting of shareholders
remove any director from office and the vacancy created by such removal may be
filled by the election of any qualified individual at the same meeting, failing
which it may be filled by the board.
4.05 Vacation of Office. - A director ceases to hold office on death, on
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removal from office by the shareholders, on ceasing to be qualified for election
as a director, on receipt of a written resignation by the Corporation, or, if a
time is specified in such resignation, at the time so specified, whichever is
later. Until the first meeting of shareholders, the resignation of a director
named in the articles shall not be effective unless at the time the resignation
is to become effective a successor has been elected.
4.06 Vacancies. - Subject to the Act, a quorum of the board may appoint a
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qualified individual to fill a vacancy in the board.
4.07 Action by the Board. - Subject to any unanimous shareholder agreement,
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the board shall manage or supervise the management of the business and affairs
of the Corporation. The powers of the board may be exercised at a meeting
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(subject to sections 4.08 and 4.09) at which a quorum is present or by
resolution in writing signed by all the directors entitled to vote on that
resolution at a meeting of the board. Where there is a vacancy in the board, the
remaining directors may exercise all the powers of the board so long as a quorum
remains in office.
4.08 Canadian Majority at Meetings. - The board shall not transact business
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at a meeting, other than filling a vacancy in the board, unless a majority of
the directors present are resident Canadians, except where
(a) a resident Canadian director who is unable to be present approves in
writing or by telephone, electronic, or other communications
facilities the business transacted at the meeting; and
(b) a majority of resident Canadians would have been present had that
director been present at the meeting; or
(c) the Corporation has fewer than three directors, one of the directors
present is a resident Canadian.
4.09 Meeting by Telephone. - If all the directors of the Corporation
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consent thereto generally or if all the directors of the Corporation present at
or participating in the meeting consent, a director may participate in a meeting
of the board or of a committee of the board by means of such telephone,
electronic or other communications facilities as permit all persons
participating in the meeting to communicate with each other, simultaneously and
instantaneously, and a director participating in such a meeting by such means is
deemed to be present at the meeting. Any such consent shall be effective whether
given before or after the meeting to which it relates and may be given with
respect to all meetings of the board and of committees of the board.
4.10 Place of Meetings. - Meetings of the board may be held at any place
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within or outside Ontario and in any financial year of the Corporation a
majority of the meetings need not be held in Canada.
4.11 Calling of Meetings. - Meetings of the board shall be held from time
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to time at such time and at such place as the board, the chair of the board, the
managing director, the president or any two directors may determine.
4.12 Notice of Meeting. - Notice of the time and place of each meeting of
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the board shall be given in the manner provided in Section Eleven to each
director not less than 4cl)' hours before the time when the meeting is to be
held. No notice of a meeting shall be necessary if all the directors in office
are present or if those absent waive notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is not lawfully
called. A notice of a meeting of directors need not specify the purpose of or
the business to be transacted at the meeting except where the Act requires such
purpose or business or the general nature thereof to be specified.
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4.13 First Meeting of New Board. - Provided a quorum of directors is
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present, each newly elected board may without notice hold its first meeting
immediately following the meeting of shareholders at which such board is
elected.
4.14 Adjourned Meeting. - Notice of an adjourned meeting of the board is
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not required if the time and place of the adjourned meeting is announced at the
original meeting.
4.15 Regular Meetings. - The board may appoint a day or days in any month
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or months for regular meetings of the board at a place and hour to be named. A
copy of any resolution of the board fixing the place and tune of such regular
meetings shall be sent to each director forthwith after being passed, but no
other notice shall be required for any such regular meeting except where the Act
requires the purpose thereof or the business to be transacted thereat to be
specified.
4.16 Chair. - The chair of any meeting of the board shall be the first
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mentioned of such of the following officers as have been appointed and who is a
director and is present at the meeting; chair of the board, managing director,
president or executive vice-president. If no such officer is present, the
directors present shall choose one of their number to be chair.
4.17 Quorum. - Subject to section 4.08, the quorum for the transaction of
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business at any meeting of the board shall be a majority of the number of
directors or minimum number of directors, as the case may be, or such greater
number of directors as the board may from time to time determine. If the
Corporation has fewer than three directors, all the directors shall be present
to constitute a quorum.
4.18 Votes to Govern. - At all meetings of the board every question shall
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be decided by a majority of the votes cast on the question. In case of an
equality of votes the chair of the meeting shall be entitled to a second or
casting vote.
4.19 Conflict of Interest. - A director who is a party to, or who is a
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director or officer of or has a material interest in any person who is a party
to, a material contract or transaction or proposed material contract or
transaction with the Corporation shall disclose to the Corporation the nature
and extent of that interest at the time and in the manner provided by the Act.
Such a director shall not vote on any resolution to approve the same except as
provided by the Act.
4.20 Remuneration and Expenses. - Subject to any unanimous shareholder
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agreement, the directors shall be paid such remuneration for their services as
the board may from time to time determine. The directors shall also be entitled
to be reimbursed for travelling and other expenses properly incurred by them in
attending meetings of the board or any committee thereof. Nothing herein
contained shall preclude any director from serving the Corporation in any other
capacity and receiving remuneration therefor.
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SECTION FIVE
COMMITTEES
5.01 Committees of the Board. - The board may appoint from their number one
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or more committees of the board, however designated, and delegate to any such
committee any of the powers of the board except those which pertain to items
which, under the Act, a committee of the board has no authority to exercise. A
majority of the members of any such committee shall be resident Canadians.
5.02 Transaction of Business. - The powers of a committee of the board may
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be exercised by a meeting at which a quorum is present or by resolution in
writing signed by all members of such committee who would have been entitled to
vote on that resolution at a meeting of the committee. Meetings of such
committee may be held at any place in or outside Ontario.
5.03 Audit Committee. - The board shall select annually from among their
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number an audit committee to be composed of not fewer than 3 directors of whom a
majority shall not be officers or employees of the Corporation or any of its
affiliates. The audit committee shall have the powers and duties provided in the
Act.
5.04 Advisory Bodies. - The board may from time to time appoint such
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advisory bodies as it may deem advisable.
5.05 Procedure. - Unless otherwise determined by the board, each committee
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and advisory body shall have power to fix its quorum at not less than a majority
of its members, to elect its chair and to regulate its procedure.
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SECTION SIX
OFFICERS
6.01 Appointment. - Subject to any unanimous shareholder agreement, the
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board may from time to time appoint a president, one or more vice-presidents (to
which title may be added words indicating seniority or function), a secretary, a
treasurer and such other officers as the board may determine, including one or
more assistants to any of the officers so appointed. One person may hold more
than one office. The board may specify the duties of and, in accordance with
this by-law and subject to the Act, delegate to such officers powers to manage
the business and affairs of the Corporation. Subject to sections 6.02 and 6.03,
an officer may but need not be a director.
6.02 Chair of the Board. - The board may from time to time also appoint a
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chair of the board who shall be a director. If appointed, the board may assign
to the Chair any of the powers and duties that are by any provisions of this
by-law assigned to the managing director or to the president. The Chair shall
have such other powers and duties as the board may specify.
6.03 Managing Director. - The board may from time to time also appoint a
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managing director who shall be a resident Canadian and a director. If appointed,
the managing director shall be the chief executive officer and, subject to the
authority of the board, shall have general supervision of the business and
affairs of the Corporation and such other powers and duties as the board may
specify. During the absence or disability of the president, or if no president
has been appointed, the managing director shall also have the powers and duties
of that office.
6.04 President. - The president shall be the chief operating officer and,
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subject to the authority of the board, shall have general supervision of the
business of the Corporation and such other powers and duties as the board may
specify. During the absence or disability of the managing director, or if no
managing director has been appointed, the president shall also have the powers
and duties of that office.
6.05 Secretary. - Unless otherwise determined by the board, the secretary
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shall be the secretary of all meetings of the board, shareholders and committees
of the board that he attends. The secretary shall enter or cause to be entered
in records kept for that purpose minutes of all proceedings at meetings of the
board, shareholders and committees of the board, whether or not in attendance at
such meetings. The secretary shall give or cause to be given, as and when
instructed, all notices to shareholders, directors, officers, auditors and
members of committees of the board. The secretary shall be the custodian of the
stamp or mechanical device generally used for affixing the corporate seal of the
Corporation and of all books, records and instruments belonging to the
Corporation, except when some other officer or agent has been appointed for that
purpose, and have such other powers and duties as otherwise may be specified.
6.06 Treasurer. - The treasurer shall keep proper accounting records in
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compliance with the Act and shall be responsible for the deposit of money, the
safekeeping of securities and the disbursement of the funds of the Corporation.
The treasurer shall render to the board whenever required an account of all
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<PAGE>
transactions as treasurer and of the financial position of the Corporation and
shall have such other powers and duties as otherwise may be specified.
6.07 Powers and Duties of Officers. - The powers and duties of all officers
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shall be such as the terms of their engagement call for or as the board or
(except for those whose powers and duties are to be specified only by the board)
the chief executive officer may specify. The board and (except as aforesaid) the
chief executive officer may, from time to time and subject to the provisions of
the Act, vary, add to or limit the powers and duties of any officer. Any of the
powers and duties of an officer to whom an assistant has been appointed may be
exercised and performed by such assistant, unless the board or the chief
executive officer otherwise directs.
6.08 Term of Office. - The board, in its discretion, may remove any officer
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of the Corporation. Otherwise each officer appointed by the board shall hold
office until his successor is appointed or until the officer resigns.
6.09 Agents and Attorneys. - The Corporation, by or under the authority of
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the board, shall have power from time to time to appoint agents or attorneys for
the Corporation in or outside Canada with such powers (including the power to
subdelegate) of management, administration or otherwise as may be thought fit.
6.10 Conflict of Interest. - An officer shall disclose any interest in a
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material contract or transaction or proposed material contract or transaction
with the Corporation in accordance with section 4.19.
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SECTION SEVEN
PROTECTION OF DIRECTORS, OFFICERS AND OTHERS
7.01 Limitation of Liability. - All directors and officers of the
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Corporation in exercising their powers and discharging their duties shall act
honestly and in good faith with a view to the best interests of the Corporation
and exercise the care, diligence and skill that a reasonably prudent person
would exercise in comparable circumstances. Subject to the foregoing, no
director or officer shall be liable for the acts, omissions, failures, neglects
or defaults of any other director, officer or employee, or for any loss, damage
or expense happening to the Corporation through the insufficiency or deficiency
of title to any property acquired for or on behalf of the Corporation, or for
the insufficiency or deficiency of any security in or upon which any of the
moneys of the Corporation shall be invested, or for any loss or damage arising
from the bankruptcy, insolvency or tortious acts of any person with whom any of
the moneys, securities or effects of the Corporation shall be deposited, or for
any loss occasioned by any error of judgment or oversight on the part of such
director or officer, or for any other loss, damage or misfortune which shall
happen in the execution of the duties of office or in relation thereto; provided
that nothing herein shall relieve any director or officer from the duty to act
in accordance with the Act and the regulations thereunder or from liability for
any breach thereof.
7.02 Indemnity. - Subject to the Act, the Corporation shall indemnify
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directors or officers, former directors or officers, or persons who act or acted
at the Corporation's request as directors or officers of a body corporate of
which the Corporation is or was a shareholder or creditor, and their heirs and
legal representatives, against all costs, charges and expenses, including an
amount paid to settle an action or satisfy a judgment, reasonably incurred by
them in respect of any civil, criminal or administrative action or proceeding to
which they are made a party by reason of being or having been a director or
officer of the Corporation or such body corporate, if (a) they acted honestly
and in good faith with a view to the best interests of the Corporation; and (b)
in the case of a criminal or administrative action or proceeding that is
enforced by a monetary penalty, they had reasonable grounds for believing that
their conduct was lawful. The Corporation shall also indemnify such person in
such other circumstances as the Act or law permits or requires. Nothing in this
by-law shall limit the right of any person entitled to indemnity to claim
indemnity apart from the provisions of this by-law.
7.03 Insurance. - Subject to the Act, the Corporation may purchase and
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maintain insurance for the benefit of any person referred to in section 7.02
hereof as the board may from time to time determine.
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SECTION EIGHT
SHARES
8.01 Allotment of Shares. - Subject to the Act, the articles or any
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unanimous shareholder agreement, the board may from time to time allot or grant
options to purchase the whole or any part of the authorized and unissued shares
of the Corporation at such times and to such persons and for such consideration
as the board shall determine, provided that no share shall be issued until it is
fully paid as provided by the Act.
8.02 Commissions. - The board may from time to time authorize the
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Corporation to pay a reasonable commission to any person in consideration of
such person purchasing or agreeing to purchase shares of the Corporation,
whether from the Corporation or from any other person, or procuring or agreeing
to procure purchasers for any such shares.
8.03 Registration of Transfers. - Subject to the Act, no transfer of a
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share shall be registered in a securities register except upon presentation of
the certificate representing such share with an endorsement which complies with
the Act made thereon or delivered therewith duly executed by an appropriate
person as provided by the Act, together with such reasonable assurance that the
endorsement is genuine and effective as the board may from time to time
prescribe, upon payment of all applicable taxes and any reasonable fees
prescribed by the board, upon compliance with such restrictions on issue,
transfer or ownership as are authorized by the articles.
8.04 Non-recognition of Trusts. - Subject to the Act, the Corporation may
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treat the registered holder of any share as the person exclusively entitled to
vote, to receive notices, to receive any dividend or other payment in respect of
the share, and otherwise to exercise all the rights and powers of an owner of
the share.
8.05 Share Certificates. - Every holder of one or more shares of the
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Corporation shall be entitled, at the holder's option, to a share certificate,
or to a non-transferable written certificate of acknowledgement of such right to
obtain a share certificate, stating the number and class or series of shares
held by such holder as shown on the securities register. Such certificates shall
be in such form as the board may from time to time approve. Any such certificate
shall be signed in accordance with section 2.04 and need not be under the
corporate seal. Notwithstanding the foregoing, unless the board otherwise
determines, certificates in respect of which a registrar, transfer agent, branch
transfer agent or issuing or other authenticating agent has been appointed shall
not be valid unless countersigned by or on behalf of such registrar, transfer
agent, branch transfer agent or issuing or other authenticating agent. The
signature of one of the signing officers under section 2.04 (or, in the case of
a certificate which is not valid unless countersigned by or on behalf of a
registrar, transfer agent, branch transfer agent or issuing or other
authenticating agent, the signatures of both signing officers under section
2.04) may be printed or otherwise mechanically reproduced thereon. Every such
printed or mechanically reproduced signature shall for all purposes be deemed to
be the signature of the officer whose signature it reproduces and shall be
binding upon the Corporation. A certificate executed as aforesaid shall be valid
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notwithstanding that one or both of the officers whose printed or mechanically
reproduced signature appears thereon no longer holds office at the date of issue
of the certificate.
8.06 Replacement of Share Certificates. - The board or any officer or agent
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designated by the board may direct the issue of a new share or other such
certificate in lieu of and upon cancellation of a certificate that has been
mutilated or in substitution for a certificate claimed to have been lost,
apparently destroyed or wrongfully taken on payment of such reasonable fee and
on such terms as to indemnity, reimbursement of expenses and evidence of loss
and of title as the board may from time to time prescribe, whether generally or
in any particular case.
8.07 Joint Shareholders. - If two or more persons are registered as joint
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holders of any share, the Corporation shall not be bound to issue more than one
certificate in respect thereof, and delivery of such certificate to one of such
persons shall be sufficient delivery to all of them. Any one of such persons may
give effectual receipts for the certificate issued in respect thereof or for any
dividend, bonus, return of capital or other money payable or warrant issuable in
respect of such share.
8.08 Deceased Shareholders. - In the event of the death of a holder, or of
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one of the joint holders, of any share, the Corporation shall not be required to
make any entry in the securities register in respect thereof or to make any
dividend or other payments in respect thereof except upon production of all such
documents as may be required by law and upon compliance with the reasonable
requirements of the Corporation and its transfer agents.
8.09 Transfer Agents and Registrars. - The Corporation may from time to
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time, in respect of each class of securities issued by it, appoint a trustee,
transfer or other agent to keep the securities register and the register of
transfers and a registrar, trustee or agent to maintain a record of issued
security certificates and may appoint one or more persons or agents to keep
branch registers, and, subject to the Act, one person may be appointed to keep
the securities register, register of transfers and the records of issued
security certificates. Such appointment may be terminated at any time by the
board.
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SECTION NINE
DIVIDENDS AND RIGHTS
9.01 Dividends. - Subject to the Act, the articles and any unanimous
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shareholder agreement, the board may from time to time declare dividends payable
to the shareholders according to their respective rights and interests in the
Corporation. Dividends may be paid in money or property or by issuing fully paid
shares of the Corporation or options or rights to acquire fully paid shares of
the Corporation. Any dividend unclaimed after a period of 6 years from the date
on which the same has been declared to be payable shall be forfeited and shall
revert to the Corporation.
9.02 Dividend Cheques. - A dividend payable in money shall be paid by
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cheque to the order of each registered holder of shares of the class or series
in respect of which it has been declared and mailed by prepaid ordinary mail to
such registered holder at the holder's recorded address, unless such holder
otherwise directs. In the case of joint holders the cheque shall, unless such
joint holders otherwise direct, be made payable to the order of all of such
joint holders and mailed to them at their recorded address. The mailing of such
cheque as aforesaid, unless the same is not paid on due presentation, shall
satisfy and discharge the liability for the dividend to the extent of the sum
represented thereby plus the amount of any tax which the Corporation is required
to and does withhold. In the event of non-receipt of any dividend cheque by the
person to whom it is sent as aforesaid, the Corporation shall issue to such
person a replacement cheque for a like amount on such terms as to indemnity,
reimbursement of expenses and evidence of non-receipt and of title as the board
may from time to time prescribe, whether generally or in any particular case.
9.03 Record Date for Dividends and Rights. - The board may fix in advance a
------------------------------------
date, preceding by not more than 50 days the date for the payment of any
dividend or the date for the issue of any warrant or other evidence of the right
to subscribe for securities of the Corporation, as a record date for the
determination of the persons entitled to receive payment of such dividend or to
exercise the right to subscribe for such securities, and notice of any such
record date shall be given not less than 7 days before such record date in the
manner provided by the Act. If no record date is so fixed, the record date for
the determination of the persons entitled to receive payment of any dividend or
to exercise the right to subscribe for securities of the Corporation shall be at
the close of business on the day on which the resolution relating to such
dividend or right to subscribe is passed by the board.
-----------------------------
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SECTION TEN
MEETINGS OF SHAREHOLDERS
10.01 Annual Meetings. - The annual meeting of shareholders shall be held at
---------------
such time in each year and, subject to section 10.03, at such place as the
board, the chair of the board, the managing director or the president may from
time to time determine, for the purpose of considering the financial statements
and reports required by the Act to be placed before the annual meeting, electing
directors, appointing auditors and for the transaction of such other business as
may properly be brought before the meeting.
10.02 Special Meetings. - The board, the chair of the board, the managing
----------------
director or the president shall have power to call a special meeting of
shareholders at any time.
10.03 Place of Meetings. - Subject to the articles and any unanimous
-----------------
shareholder agreement meetings of shareholders of the Corporation shall be held
at such place in or outside Ontario as the directors determine or, in the
absence of such a determination, at the place where the registered office of the
Corporation is located.
10.04 Notice of Meetings. - Notice of the time and place of each meeting of
------------------
shareholders shall be given in the manner provided in Section Eleven not less
than 21 nor more than 50 days before the date of the meeting to each director,
to the auditor, and to each shareholder who at the close of business on the
record date for notice is entered in the securities register as the holder of
one or more shares carrying the right to vote at the meeting. Notice of a
meeting of shareholders called for any purpose other than consideration of the
minutes of an earlier meeting, financial statements and auditor's report,
election of directors and reappointment of the incumbent auditor shall state the
nature of such business in sufficient detail to permit the shareholder to form a
reasoned judgment thereon and shall state the text of any special resolution or
by-law to be submitted to the meeting.
10.05 List of Shareholders Entitled to Notice. - For every meeting of
---------------------------------------
shareholders, the Corporation shall prepare a list of shareholders entitled to
receive notice of the meeting, arranged in alphabetical order and showing the
number of shares held by each shareholder entitled to vote at the meeting. If a
record date for the meeting is fixed pursuant to section 10.06, the shareholders
listed shall be those registered at the close of business on such record date.
If no record date is fixed, the shareholders listed shall be those registered at
the close of business on the day immediately preceding the day on which notice
of the meeting is given or, where no such notice is given, on the day on which
the meeting is held. The list shall be available for examination by any
shareholder during usual business hours at the registered office of the
Corporation or at the place where the central securities register is maintained
and at the meeting for which the list was prepared. Where a separate list of
shareholders has not been prepared, the names of persons appearing in the
securities register at the requisite time as the holder of one or more shares
carrying the right to vote at such meeting shall be deemed to be a list of
shareholders.
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10.06 Record Date for Notice. - The board may fix in advance a date,
----------------------
preceding the date of any meeting of shareholders by not more than 50 days and
not less than 21 days, as a record date for the determination of the
shareholders entitled to notice of the meeting, and notice of any such record
date shall be given not less than 7 days before such record date, by newspaper
advertisement in the manner provided in the Act and by written notice to each
stock exchange in Canada on which the shares of the Corporation are listed for
trading. If no such record date is so fixed, the record date for the
determination of the shareholders entitled to receive notice of the meeting
shall be at the close of business on the day immediately preceding the day on
which the notice is given or, if no notice is given, shall be the day on which
the meeting is held.
10.07 Meetings Without Notice. - A meeting of shareholders may be held
-----------------------
without notice at any time and place permitted by the Act (a) if all the
shareholders entitled to vote thereat are present in person or duly represented
or if those not present or represented waive notice of or otherwise consent to
such meeting being held, and (b) if the auditors and the directors are present
or waive notice of or otherwise consent to such meeting being held; so long as
such shareholders, auditors or directors present are not attending for the
express purpose of objecting to the transaction of any business on the grounds
that the meeting is not lawfully called. At such a meeting any business may be
transacted which the Corporation at a meeting of shareholders may transact.
10.08 Chair, Secretary and Scrutineers. - The chair of any meeting of
--------------------------------
shareholders shall be the first mentioned of such of the following officers as
have been appointed and who is present at the meeting: managing director,
president, chair of the board, or a vice president who is a shareholder. If no
such officer is present within 15 minutes from the time fixed for holding the
meeting, the persons present and entitled to vote shall choose one of their
number to be chair. If the secretary of the Corporation is absent, the chair
shall appoint some person, who need not be a shareholder, to act as secretary of
the meeting. If desired, one or more scrutineers, who need not be shareholders,
may be appointed by a resolution or by the chair with the consent of the
meeting.
10.09 Persons Entitled to be Present. - The only persons entitled to be
------------------------------
present at a meeting of shareholders shall be those entitled to vote thereat,
the directors and auditor of the Corporation and others who, although not
entitled to vote, are entitled or required under any provision of the Act or the
articles or by-laws to be present at the meeting. Any other person may be
admitted only on the invitation of the chair of the meeting or with the consent
of the meeting.
10.10 Quorum. - A quorum for the transaction of business at any meeting of
------
shareholders shall be two persons present in person, each being a shareholder
entitled to vote thereat or a duly appointed proxyholder or representative for a
shareholder so entitled, irrespective of the number of shares held by such
persons. If a quorum is present at the opening of any meeting of shareholders,
the shareholder or shareholders present or represented may proceed with the
business of the meeting notwithstanding that a quorum is not present throughout
the meeting. If a quorum is not present at the time appointed for the meeting or
within a reasonable time thereafter as the shareholders may determine, the
shareholders present or represented may adjourn the meeting to a fixed time and
place but may not transact any other business.
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10.11 Right to Vote. - Every person named in the list referred to in section
-------------
10.05 shall be entitled to vote the shares shown thereon opposite such person's
name at the meeting to which such list relates, except to the extent that (a)
where the Corporation has fixed a record date in respect of such meeting, such
person has transferred any of his shares after such record date or, where the
Corporation has not fixed a record date in respect of such meeting, such person
has transferred any shares after the date on which such list is prepared, and
(b) the transferee, having produced properly endorsed certificates evidencing
such shares or having otherwise established ownership of such shares, has
demanded not later than 10 days before the meeting that the transferee's name be
included in such list. In any such excepted case the transferee shall be
entitled to vote the transferred shares at such meeting.
10.12 Proxyholders and Representatives. - Every shareholder entitled to vote
--------------------------------
at a meeting of shareholders may appoint a proxyholder, or one or more alternate
proxyholders, as nominee of such shareholder to attend and act at the meeting in
the manner and to the extent authorized and with the authority conferred by the
proxy. A proxy shall be in writing executed by the shareholder or the
shareholder's attorney and shall conform with the requirements of the Act.
Alternatively, every such shareholder which is a body corporate or association
may authorize by resolution of its directors or governing body an individual to
represent it at a meeting of shareholders and such individual may exercise on
the shareholder's behalf all the powers it could exercise if it were an
individual shareholder. The authority of such an individual shall be established
by depositing with the Corporation a certified copy of such resolution, or in
such other manner as may be satisfactory to the secretary of the Corporation or
the chair of the meeting. Any such proxyholder or representative need not be a
shareholder. A proxy ceases to be valid one year from its date.
10.13 Time for Deposit of Proxies. - The board may fix a time not exceeding
---------------------------
48 hours, excluding Saturdays and holidays, preceding any meeting or adjourned
meeting of shareholders before which time proxies to be used at the meeting must
be deposited with the Corporation or an agent thereof, and any period of time so
fixed shall be specified in the notice calling the meeting. A proxy shall be
acted upon only if, prior to the time so specified, it shall have been deposited
with the Corporation or an agent thereof specified in such notice or if, no such
time having been specified in such notice, it has been received by the secretary
of the Corporation or by the chair of the meeting or any adjournment thereof
prior to the time of voting.
10.14 Joint Shareholders. - If two or more persons hold shares jointly, any
------------------
one of them present in person or duly represented at a meeting of shareholders
may, in the absence of the other or others, vote the shares; but if two or more
of those persons are present in person or represented and vote, they shall vote
as one the shares jointly held by them.
10.15 Votes to Govern. - At any meeting of shareholders every question
---------------
shall, unless otherwise required by the articles or by-laws or by law, be
determined by a majority of the votes cast on the question. In case of an
equality of votes either upon a show of hands or upon a poll, the chair of the
meeting shall be entitled to a second or casting vote.
10.16 Show of Hands. - Subject to the Act, any question at a meeting of
-------------
shareholders shall be decided by a show of hands, unless a ballot thereon is
required or demanded as hereinafter provided, and upon a show of hands every
person who is present and entitled to vote shall have one vote. Whenever a vote
10-3
<PAGE>
by show of hands shall have been taken upon a question, unless a ballot thereon
is so required or demanded, a declaration by the chair of the meeting that the
vote upon the question has been carried or carried by a particular majority or
not carried and an entry to that effect in the minutes of the meeting shall be
prima facie evidence of the fact without proof of the number or proportion of
the votes recorded in favour of or against any resolution or other proceeding in
respect of the said question, and the result of the vote so taken shall be the
decision of the shareholders upon the said question.
10.17 Ballots. - On any question proposed for consideration at a meeting of
-------
shareholders, and whether or not a show of hands has been taken thereon, the
chair may require a ballot or any person who is present and entitled to vote on
such question at the meeting may demand a ballot. A ballot so required or
demanded shall be taken in such manner as the chair shall direct. A requirement
or demand for a ballot may be withdrawn at any time prior to the taking of the
ballot. If a ballot is taken each person present shall be entitled, in respect
of the shares which such person is entitled to vote at the meeting upon the
question, to that number of votes provided by the Act or the articles, and the
result of the ballot so taken shall be the decision of the shareholders upon the
said question.
10.18 Adjournment. - The chair at a meeting of shareholders may, with the
-----------
consent of the meeting and subject to such conditions as the meeting may decide,
adjourn the meeting from time to time and from place to place. If a meeting of
shareholders is adjourned for less than 30 days, it shall not be necessary to
give notice of the adjourned meeting, other than by announcement at the earliest
meeting that is adjourned. Subject to the Act, if a meeting of shareholders is
adjourned by one or more adjournments for an aggregate of 30 days or more,
notice of the adjourned meeting shall be given as for an original meeting.
-----------------------------
10-4
<PAGE>
SECTION ELEVEN
NOTICES
11.01 Method of Giving Notices. - Any notice (which term includes any
------------------------
communication or document) to be given (which term includes sent, delivered or
served) pursuant to the Act, the regulations thereunder, the articles, the
by-laws or otherwise to a shareholder, director, officer, auditor or member of a
committee of the board shall be sufficiently given if delivered personally to
the person to whom it is to be given, if mailed to such person at the person's
recorded address by prepaid mail, or if transmitted by telephone facsimile or
other electronic telecommunication facility. A notice so delivered shall be
deemed to have been received when it is delivered personally, a notice so mailed
shall be deemed to have been received on the fifth day after it is deposited in
a post office or public letter box, and a notice so transmitted shall be deemed
to have been received on the day it is transmitted. The secretary may change or
cause to be changed the recorded address of any shareholder, director, officer,
auditor or member of a committee of the board in accordance with any information
believed by the secretary to be reliable.
11.02 Notice to Joint Shareholders. - If two or more persons are registered
----------------------------
as joint holders of any share, any notice may be addressed to all such joint
holders, but notice addressed to one of such persons shall be sufficient notice
to all of them.
11.03 Computation of Time. - In computing the date when notice must be given
-------------------
under any provision requiring a specified number of days' notice of any meeting
or other event, the day of giving the notice shall be excluded and the day of
the meeting or other event shall be excluded.
11.04 Undelivered Notices. - If any notice given to a shareholder pursuant
-------------------
to section 11.01 is returned on three consecutive occasions because the
shareholder cannot be found, the Corporation shall not be required to give any
further notices to such shareholder until informed in writing by the shareholder
of a new address.
11.05 Omissions and Errors. - The accidental omission to give any notice to
--------------------
any shareholder, director, officer, auditor or member of a committee of the
board or the non-receipt of any notice by any such person or any error in any
notice not affecting the substance thereof shall not invalidate any action taken
at any meeting held pursuant to such notice or otherwise founded thereon.
11.06 Persons Entitled by Death or Operation of Law. - Every person who, by
---------------------------------------------
operation of law, transfer, death of a shareholder or any other means
whatsoever, shall become entitled to any share, shall be bound by every notice
in respect of such share which shall have been duly given to the shareholder
from whom such person derives title to such share prior to the name and address
of such person being entered on the securities register (whether such notice was
given before or after the happening of the event upon which such person became
so entitled) and prior to such person furnishing to the Corporation the proof of
authority or evidence of entitlement prescribed by the Act.
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<PAGE>
11.07 Waiver of Notice. - Any shareholder, proxyholder or other person
----------------
entitled to attend a meeting of shareholders, director, officer, auditor or
member of a committee of the board may at any time waive any notice, or waive or
abridge the time for any notice, required to be given to him under the Act, the
regulations thereunder, the articles, the by-laws or otherwise, and such waiver
or abridgement, whether given before or after the meeting or other event of
which notice is required to be given, shall cure any default in the giving or in
the time of such notice, as the case may be. Any such waiver or abridgement
shall be in writing except a waiver of notice of a meeting of shareholders or of
the board or a committee of the board which may be given in any manner.
11.08 Interpretation. - In this by-law, "recorded address" means in the case
--------------
of a shareholder the address as recorded in the securities register; and in the
case of joint shareholders the address appearing in the securities register in
respect of such joint holding or the first address so appearing if there are
more than one; in the case of an officer, auditor or member of a committee of
the board, the latest address as recorded in the records of the Corporation; and
in the case of a director, the latest address as shown in the records of the
corporation or in the most recent notice filed under the Corporations
Information Act, whichever is the more current.
-----------------------------
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<PAGE>
SECTION TWELVE
EFFECTIVE DATE AND REPEAL
12.01 Effective Date. - This by-law shall come into force when made by the
--------------
board in accordance with the Act.
12.02 Repeal. - All previous by-laws of the Corporation are repealed as of
------
the coming into force of this by-law. Such repeal shall not affect the previous
operation of any by-law so repealed or affect the validity of any act done or
right, privilege, obligation or liability acquired or incurred under, or the
validity of any contract or agreement made pursuant to, or the validity of any
articles (as defined in the Act) or predecessor charter documents of the
Corporation obtained pursuant to, any such by-law prior to its repeal. All
officers and persons acting under any by-law so repealed shall continue to act
as if appointed under the provisions of this by-law and all resolutions of the
shareholders or the board or a committee of the board with continuing effect
passed under any repealed by-law shall continue to be good and valid except to
the extent inconsistent with this by-law and until amended or repealed.
-----------------------------
The foregoing by-law was made by the directors of the Corporation on
the a day of , 1996, and was confirmed without variation by the
shareholders of the Corporation on the day of , 1996.
----------------------------------------
Secretary
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<PAGE>
RESOLUTION OF THE BOARD OF DIRECTORS
OF
ASTRIS ENERGI INC.
By-Law No. A-1
--------------
RESOLVED that By-Law No. A-1, being a By-law relating generally to the
transaction of business of the Corporation and repealing all previous By-laws is
hereby made as a By-law of the Corporation.
* * * *
The foregoing resolution is hereby consented to by all the directors
of the Corporation pursuant to the Business Corporations Act this
day of 1996.
/s/ E. Roy Birkett /s/ Richard Clewes
---------------------------------- ----------------------------------
E. Roy Birkett Richard Clewes
/s/ Gerald A. Crawford /s/ Joseph C. Hasel
---------------------------------- ----------------------------------
Gerald A. Crawford Joseph C. Hasel
/s/ Jiri K. Nor /s/ Donald A. Blenkarn
---------------------------------- ----------------------------------
Jiri K. Nor Donald A. Blenkarn
-----------------------------
