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EXHIBIT 3.2
BY-LAW NO. 4
A by-law relating generally to the
transaction of the business and affairs of
HYDROGENICS CORPORATION -
CORPORATION HYDROGENIQUE
(the "Corporation")
ARTICLE 1
INTERPRETATION
1.01 DEFINITIONS. In this by-law and all other by-laws and resolutions of the
Corporation, unless the context otherwise requires:
(a) The following terms shall have the meanings specified:
(i) "Act" means the Canada Business Corporations Act or any statute
which may be substituted therefor, as amended from time to time;
(ii) "articles" means the original or restated articles of
incorporation, articles of amendment, articles of amalgamation,
articles of continuance, articles of arrangement, articles of
dissolution, articles of reorganization or articles of revival of
the Corporation and any amendments thereto;
(iii) "board" means the board of directors of the Corporation;
(iv) "director" means a member of the board;
(v) "electronic" means by facsimile, electronic mail, transmission of
data or information through computer networks, any similar means
or any other prescribed means; and
(vi) "meeting of shareholders" means an annual meeting of shareholders
of the Corporation, or a special meeting of shareholders of the
Corporation, or both, and includes a meeting of any class or
series of any class of shareholders of the Corporation;
(b) Terms used herein that are defined in the Act shall have the meanings
given to those terms in the Act; and
(c) Words importing the masculine gender shall include the feminine and
neuter genders, and words importing the singular number shall include the
plural number, and vice versa.
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ARTICLE 2
DIRECTORS
2.01 NUMBER OF DIRECTORS AND QUORUM. Until changed in accordance with the Act,
the board shall consist of such number of directors as set out in the articles
of the Corporation or as the board may from time to time determine. A majority
of the directors shall constitute a quorum for the transaction of business.
Notwithstanding vacancies, a quorum of directors may exercise all the powers of
the board.
2.02 ELECTION AND TERM. Directors shall be elected by the shareholders at each
annual meeting of shareholders to hold office until the next annual meeting of
shareholders or until their respective successors are elected or appointed. The
number of directors to be elected at any such meeting shall be that number most
recently determined by the board. At any annual meeting of shareholders every
retiring director shall, if qualified, be eligible for re-election.
2.03 QUALIFICATION. At least that number of directors as required by the Act
shall be resident Canadian and at least that number of directors as required by
the Act shall not be officers or employees of the Corporation or its affiliates.
2.04 PLACE OF MEETINGS. Meetings of the board may be held at any place within or
outside Canada.
2.05 CALLING OF MEETINGS. Meetings of the board shall be held from time to time
at such place, on such day and at such time as the board, the chairman of the
board, the president or any two directors may determine.
2.06 NOTICE. Notice of the time and place of each meeting of the board shall be
given to each director at least forty-eight (48) hours before the meeting by any
means including telephone, facsimile or electronic means. A notice of meeting of
the board need not specify the business to be transacted at the meeting except
as may be required by the Act. The accidental failure to give notice of a
meeting of the board to a director or any error in such notice not affecting the
substance thereof shall not invalidate any action taken at the meeting. A
meeting of the board may be held without notice immediately following any annual
meeting of shareholders. An individual need not be given notice of the meeting
at which that individual is appointed by the other directors to fill a vacancy
on the board if that individual is present at that meeting.
2.07 VOTES TO GOVERN. At all meetings of the board any question shall be decided
by a majority of the votes cast on the question and, in the case of an equality
of votes, the chairman of the meeting shall not be entitled to a second or
casting vote.
2.08 CHAIRMAN AND SECRETARY. The chairman of the board shall be chairman of any
meeting of the board. If the chairman of the board is not present, the directors
present shall choose one of their number to be chairman. The secretary of the
Corporation shall act as secretary at any meeting of the board and, if the
secretary of the Corporation be absent, the chairman of the meeting shall
appoint a person who need not be a director to act as secretary of the meeting.
2.09 MEETINGS BY TELEPHONE OR ELECTRONIC MEANS. Wherever permitted by the Act,
meetings of directors may be held by telephone or electronic means or by means
of such other
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communications facilities as shall permit all persons participating in the
meeting to communicate adequately, and a director participating in a meeting of
directors by such means shall be deemed to be present at the meeting.
ARTICLE 3
COMMITTEES
3.01 AUDIT COMMITTEE. The directors shall appoint from among their number an
audit committee to be composed of not fewer than three directors, of whom a
majority shall not be officers or employees of the Corporation or any affiliate
of the Corporation. The audit committee shall have the functions prescribed by
the board of directors.
3.02 OTHER COMMITTEES. The board may elect or appoint additional committees
composed of directors or such other persons which may exercise such powers as,
subject to any limitations prescribed by the Act, the board may delegate to them
and shall have such other functions as the board may determine.
3.03 COMMITTEE PROCEDURE. Subject to the Act and any restrictions imposed by the
board, each committee shall have the power to fix its quorum to elect its
chairman and to regulate its procedure.
ARTICLE 4
OFFICERS
4.01 APPOINTMENT OF OFFICERS. The board may from time to time appoint a chairman
of the board, a president, one or more vice-presidents, 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.
4.02 TERM OF OFFICE. Every officer shall hold office during the pleasure of the
board.
ARTICLE 5
MEETINGS OF SHAREHOLDERS
5.01 ANNUAL AND SPECIAL MEETINGS. The board shall call an annual meeting of
shareholders not later than 15 months after the holding of the last preceding
annual meeting. The board may at any time call a special meeting of
shareholders. Meetings of shareholders shall be held at such place within or
outside Canada as the board may determine.
5.02 NOTICE OF MEETINGS. Notice in writing of the time and place of each meeting
of shareholders shall be given not less than twenty-one (21) days nor more than
fifty (50) days before the meeting to each shareholder entitled to vote at the
meeting, to each director and to the auditor of the Corporation. The accidental
failure to give notice of a meeting of shareholders to any person entitled
thereto or any error in such notice not affecting the substance thereof shall
not invalidate any action taken at the meeting.
5.03 PERSONS ENTITLED TO BE PRESENT. The only persons entitled to attend a
meeting of shareholders shall be those persons entitled to vote thereat, the
directors, the auditor of the Corporation and any other persons who, although
not entitled to vote at the meeting, are entitled
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or required under any provision of the Act, the articles or any by-law of the
Corporation to attend the meeting. Any other persons may be admitted to the
meeting only on the invitation of the chairman of the meeting or with the
consent of the meeting.
5.04 QUORUM. At any meeting of shareholders, the holders of at least a majority
of the outstanding shares of the Corporation entitled to vote at the meeting
present in person or, wherever permitted by the Act, by telephone or electronic
means or represented by proxy shall constitute a quorum for the transaction of
business.
5.05 CHAIRMAN, SECRETARY AND SCRUTINEERS. The chairman of the board or, in the
absence of the chairman, a director designated by the board shall act as
chairman at each meeting of shareholders. The secretary of the Corporation, or
in the absence of the secretary, such other person as the chairman of the
meeting may appoint, shall act as secretary of the meeting. At any meeting of
shareholders, the chairman of the meeting may appoint one or more persons, who
may but need not be shareholders, to serve as scrutineers with such duties as
the chairman may prescribe.
5.06 VOTING. 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. Upon a show of hands every person who is present and entitled to vote
thereon shall have one vote. Whenever a vote by show of hands shall have been
taken upon a question, unless a ballot thereon is so required or demanded, a
declaration by the chairman 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.
5.07 BALLOTS. On any question proposed for consideration at a meeting of
shareholders, regardless of the manner of voting, the chairman may require, or
any shareholder or proxyholder entitled to vote at the meeting may demand, a
ballot. A ballot so required or demanded shall be taken in such manner as the
chairman 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 each 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.
ARTICLE 6
PAYMENTS
6.01 CHEQUES. Any amount payable in cash to shareholders (including dividends
payable in cash) shall be paid by cheque drawn on the Corporation's bankers or
one of them to the order of each registered holder of shares of the class or
series in respect of which such amount is to be paid and mailed by prepaid
ordinary mail to such registered holder at such holder's address recorded in the
Corporation's securities register, unless in each case 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 address
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recorded in the securities register of the Corporation. In the case of the
payment of a dividend, 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.
6.02 NON-RECEIPT OF CHEQUES. In the event of non-receipt of any cheque by the
person to whom it is sent, 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.
6.03 UNCLAIMED DIVIDENDS. Any dividend unclaimed after a period of six (6) years
from the date on which the same has been declared to be payable shall be
forfeited and shall revert to the Corporation.
6.04 CURRENCY OF DIVIDENDS. Dividends or other distributions payable in cash may
be paid to shareholders in any denomination. The board may declare dividends or
other distributions in any currency and make such provisions as it deems
advisable for the payment of such dividends or other distributions.
ARTICLE 7
EXECUTION OF INSTRUMENTS
7.01 GENERAL. Contracts, documents or other instruments requiring execution by
the Corporation may be signed by any one director or officer. The board may
appoint any other person or persons to sign instruments generally or specific
instruments. Where appropriate, such instruments may be executed under the
corporate seal.
7.02 EXECUTION IN COUNTERPART OR BY ELECTRONIC MEANS. Any notice, resolution,
by-law, requisition, statement or other documents may be executed by facsimile
or other electronic means and in several documents of like form, each of which
is executed by one or more persons, and such documents when duly executed by all
persons required or permitted, as the case may be, to do so, shall be deemed to
constitute one documents for the purposes of the Act.
7.03 AUTHORITY TO ACT FOR THE CORPORATION. By way of supplement to Article 7.01,
any director or officer is authorized, for and on behalf of the Corporation, to
make, enter into, execute and deliver powers of attorney appointing agents to
act on behalf of the Corporation, on such terms and conditions as they see fit,
in connection with the incorporation and other matters relating to subsidiaries
of the Corporation located outside of Canada.
ARTICLE 8
BORROWING
8.01 BORROWING. Without limit to the powers of the board as provided in the Act,
the board may from time to time on behalf of the Corporation:
(a) borrow money upon credit of the Corporation;
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(b) issue, reissue, sell or pledge debt obligations of the Corporation;
(c) to the extent permitted by the Act, give, directly or indirectly,
financial assistance to any person by means of a loan, a guarantee to
secure the performance of an obligation or otherwise;
(d) mortgage, hypothecate, pledge or otherwise create a security interest in
all or any property of the Corporation, owned or subsequently acquired,
to secure any obligation of the Corporation; and
(e) delegate to one or more directors or officers all or any of the powers
conferred by the foregoing provisions to such extent and in such manner
as the board shall determine at the time of such delegation.
ARTICLE 9
PROTECTION OF DIRECTORS AND OFFICERS
9.01 TRANSACTIONS WITH THE CORPORATION. Except as provided by the Act and
subject to Article 9.02, no director or officer shall be disqualified, by virtue
of being a director or officer of the Corporation, from entering into, or from
being concerned or interested in any manner in, any contract, transaction or
arrangement made or proposed to be made with the Corporation or any body
corporate in which the Corporation is interested and no such contract,
transaction or arrangement shall be void or voidable for any such reason. No
director or officer shall be liable to account to the Corporation for any profit
arising from any such office or realized in respect of any such contract,
transaction or arrangement.
9.02 CONFLICT OF INTEREST. Subject to and in accordance with the provisions of
the Act, a director or officer of the Corporation who is a party to a material
contract or transaction or proposed material contract or transaction with the
Corporation, or is a director or an 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 in writing to the
Corporation or request to have entered in the minutes of meetings of directors
the nature and extent of such director or officer's interest, and any such
director shall refrain from voting in respect thereof unless otherwise permitted
by the Act.
9.03 LIMITATION OF LIABILITY. All directors and officers of the 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
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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.
9.04 INDEMNITY OF DIRECTORS AND OFFICERS. Subject to the limitations contained
in the Act but without limit to the right of the Corporation to indemnify any
person under the Act or otherwise, to the full extent permitted by the Act, the
Corporation shall indemnify a director or officer of the Corporation, a former
director or officer of the Corporation or a person who acts or acted at the
Corporation's request as a director or officer of a body corporate of which the
Corporation is or was a shareholder or creditor (or a person who undertakes or
has undertaken any liability on behalf of the Corporation or at the
Corporation's request on behalf of any such body corporate), and such director
or officer's 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 such director or officer in respect of any civil,
criminal or administrative action or proceeding to which such director or
officer is made a party by reason of being or having been a director or officer
of such Corporation or body corporate (or by reason of having undertaken such
liability); and the Corporation shall with the approval of a court indemnify a
person in respect of an action by or on behalf of the Corporation or body
corporate to procure a judgment in its favour, to which such person is made a
party by reason of being or having been a director or an officer of the
Corporation or body corporate, against all costs, charges and expenses
reasonably incurred by such director or officer in connection with such action
if in each case such director or officer:
(a) 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, had reasonable grounds for
believing that his or her conduct was lawful.
Notwithstanding the foregoing, the Corporation shall, without requiring the
approval of a court, indemnify any person referred to above, in respect of an
action by or on behalf of the Corporation or body corporate to procure a
judgment in its favour who has been substantially successful on the merits in
the defence of any civil, criminal or administrative action or proceeding to
which such person is made a party by reason of being or having been a director
or officer of the Corporation or body corporate, against all costs, charges and
expenses reasonably incurred by such person in respect of such action or
proceeding, provided that such person has satisfied the appropriate conditions
referred to in (a) and (b) above.
9.05 INSURANCE. Subject to the limitations contained in the Act, the Corporation
may purchase and maintain insurance for the benefit of any person referred to in
Article 9.03 as the board may from time to time determine.
9.06 INDEMNITIES NOT LIMITING. The provisions of this Article 9 shall be in
addition to and not in substitution for any rights, immunities and protections
to which any person referred to in Article 9.03 is otherwise entitled.
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ARTICLE 10
GENERAL
10.01 CORPORATE SEAL. The Corporation may have one or more different corporate
seals, which seals may be adopted or changed from time to time by the board, on
which the name of the Corporation may appear in one or more language forms as
set out in its articles.
10.02 FINANCIAL YEAR. Until changed by the board, the financial year of the
Corporation shall end on December 31 of each year.
ARTICLE 11
REPEAL
11.01 REPEAL. Upon this by-law coming into force, each of By-Law No. 1, 2 and 3
of the Corporation are repealed. However, such repeal shall not affect the
previous operation of such by-laws or affect the validity of any act done or
right, privilege, obligation or liability acquired or incurred under the
validity of any contract or agreement made pursuant to such by-laws prior to
their repeal. All officers and persons acting under such repealed by-laws shall
continue to act as if appointed under the provisions of this by-law and all
resolutions of the shareholders or board with continuing effect passed under
such repealed by-laws shall continue good and valid, until amended or repealed,
except to the extent inconsistent with this by-law.
ENACTED by the board on September 11, 2000 and confirmed, without
variation, by the shareholders on September 11, 2000.
DATED September 27, 2000.
(Signed) Pierre Rivard
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Pierre Rivard
President
