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EXHIBIT 10.2
THIS AMENDING AGREEMENT is made this 24th day of July, 2000 between
Hydrogenics Corporation (the "Corporation"), CIBC Capital Partners ("CIBC"),
Micro-Generation Technology Fund, L.L.C. ("MG Fund"), Working Ventures Canadian
Fund Inc. ("WV"), Reliant Energy Ventures Inc. (formerly Development Ventures
Inc.) ("DVI"), Pierre Rivard ("Rivard"), Joe Cargnelli ("Cargnelli") and Boyd
Taylor ("Taylor") (the Corporation, CIBC, MG Fund, WV, DVI, Rivard, Cargnelli
and Taylor collectively referred to herein as the "Parties" and each of them a
"Party").
RECITALS:
A. The Parties, together with the Legacy Investors and other persons who
become Shareholders from time to time, are all of the parties to the
Amended and Restated Unanimous Shareholder's Agreement dated January
24, 2000 (the "Shareholder's Agreement").
B. The Parties consider it appropriate to amend the Shareholder's
Agreement to amend matters relating to the size, composition and
election of the Board and various committees appointed by the Board.
C. Section 1.8 of the Shareholder's Agreement provides that the
Shareholder's Agreement may be amended if such amendments are approved
in writing by each of the Parties and any amendment so approved shall
be binding on all Shareholders including the Legacy Investors and other
persons who become Shareholders from time to time.
THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 In this Amending Agreement all capitalized terms used herein (including
without limitation, the recitals hereto) and not otherwise defined
shall have the meanings ascribed to them in the Shareholder's
Agreement.
ARTICLE 2
DIRECTORS AND SHAREHOLDERS
2.1 NUMBER OF DIRECTORS
Section 5.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"5.1 Number of Directors. The Corporation's articles shall
provide for a minimum of three (3) and a maximum of nine (9)
Directors.
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The Corporation shall initially have seven (7) Directors who
shall be nominated and elected as provided for in Section
5.2."
2.2 MEMBERS OF THE BOARD OF DIRECTORS
Section 5.2(a) of the Shareholder's Agreement is hereby deleted in its
entirety and replaced with the following:
"(a) Nomination. The Board of Directors shall consist of one
nominee of WV, one nominee of CIBC, three nominees of Rivard,
Cargnelli and Taylor (acting together) and two other
Independent Directors, one of whom shall also act as chairman,
mutually acceptable to all parties. In the event that any of
Rivard, Cargnelli and Taylor are nominated to the Board, and
in the event of the death of any of them, the Shareholders
shall nominate a person who is Independent in the deceased's
place as Director. CIBC shall initially nominate as its
nominee an individual that will qualify as an Independent
Director."
2.3 OBSERVER STATUS FOR CIBC
Immediately after Section 5.2(f) of the Shareholder's Agreement
entitled "Observer Status for DVI", a new Section 5.2(g) shall be added
as follows:
"(g) Observer Status for CIBC. In the event that CIBC has
nominated an individual that qualifies as an Independent
Director and for so long as CIBC is a Shareholder, CIBC shall
be entitled to receive notice of all meetings of the Board and
shall be invited to attend all such meetings but shall have no
voting or other rights thereat. The representative of CIBC
shall be entitled to compensation for reasonable travel and
out-of-pocket expenses incurred in attending such meetings,
upon presentation of receipts therefor."
2.4 OBSERVER STATUS FOR WV
Immediately after the new Section 5.2(g) of the Shareholder's Agreement
entitled "Observer Status for CIBC", a new Section 5.2(h) shall be
added as follows:
"(h) Observer Status for WV. In the event that WV has
nominated an individual that qualifies as an Independent
Director and for so long as WV is a Shareholder, WV shall be
entitled to receive
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notice of all meetings of the Board and shall be invited to
attend all such meetings but shall have no voting or other
rights thereat. The representative of WV shall be entitled to
compensation for reasonable travel and out-of-pocket expenses
incurred in attending such meetings, upon presentation of
receipts therefor."
2.5 INSURANCE
Section 5.5 of the Shareholder's Agreement is hereby deleted in its
entirety and replaced with the following:
"5.5 Insurance. The Corporation shall arrange director's
insurance coverage for the Directors of the Corporation on
terms and conditions in an amount acceptable to the Board."
2.6 EXERCISE OF AUTHORITY - MANAGEMENT DEVELOPMENT AND COMPENSATION
COMMITTEE
Section 5.7(f) of the Shareholder's Agreement is hereby deleted in its
entirety and replaced with the following:
"(f) Management Development and Compensation Committee. The
Board shall appoint a Management Development and Compensation
Committee and shall delegate to the Management Development and
Compensation Committee responsibility for the following: (i)
reviewing and recommending the terms of compensation packages
provided to the Corporation's employees including its
executive officers, (ii) reviewing and recommending the terms
of any bonus or other awards provided to the Corporation's
employees including its executive officers, (iii) reviewing
and recommending new executive officer appointees and (iv)
administering the Corporation's stock option plan. The
Management Development and Compensation Committee shall be
comprised solely of Directors and shall consist of at least
three members, one of whom shall be a nominee of CIBC and one
of whom shall be a nominee of WV. No more than one member of
the Senior Management Group shall be a member of the
Management Development and Compensation Committee. In order to
be effective, all decisions of the Management Development and
Compensation Committee shall be made by a unanimous vote of
its members at a meeting or in writing."
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2.7 EXERCISE OF AUTHORITY - AUDIT COMMITTEE
Section 5.7(g) of the Shareholder's Agreement is hereby deleted in its
entirety and replaced with the following:
"(g) Audit Committee. The Board shall appoint an Audit
Committee and shall delegate to the Audit Committee
responsibility for the following: (i) overseeing the
retention, performance and compensation of the Corporation's
independent auditors, and (ii) establishing procedures and
overseeing the Corporation's system of internal accounting and
auditing control. The Audit Committee shall be comprised
solely of Directors and shall consist of at least three
members, one of whom shall be a nominee of CIBC and one of
whom shall be a nominee of WV. No member of the Senior
Management Group shall be a member of the Audit Committee. In
order to be effective, all decisions of the Audit Committee
shall be made by a unanimous vote of its members at a meeting
or in writing."
2.8 EXERCISE OF AUTHORITY - NOMINATION AND CORPORATE GOVERNANCE COMMITTEE
Immediately after Section 5.7(g) of the Shareholder's Agreement
entitled "Audit Committee", a new Section 5.7(h) shall be added as
follows:
"(h) Nomination and Corporate Governance Committee. The Board
shall appoint a Nomination and Corporate Governance Committee
and shall delegate to the Nomination and Corporate Governance
Committee responsibility for the following: (i) evaluating and
assessing the effectiveness of the Board, its Directors and
its various Committees, (ii) establishing procedures for
identifying new nominees to the Board, (iii) recruiting and
recommending new nominees to be elected to the Board, and,
(iv) developing and monitoring the Corporation's approach to
corporate governance issues. The Nomination and Corporate
Governance Committee shall be comprised solely of Directors
and shall consist of at least three members, one of whom shall
be a nominee of CIBC and one of whom shall be a nominee of WV.
No more than one member of the Senior Management Group shall
be a member of the Nomination and Corporate Governance
Committee. In order to be effective, all decisions of the
Nomination and Corporate Governance Committee shall be made by
a unanimous vote of its members at a meeting or in writing."
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ARTICLE 3
ALL OTHER PROVISIONS REMAIN THE SAME
3.1 All other provisions contained in the Shareholder's Agreement and not
explicitly amended as provided for herein remain the same and are
hereby agreed to be in full force and effect.
3.2 For greater certainty and without limiting the generality of the
foregoing, this Amending Agreement shall terminate at the same time and
in the same manner as the Shareholder's Agreement terminates as is
provided for in Section 2.1 thereof.
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IN WITNESS OF WHICH the Parties have duly executed this Amending Agreement on
the date first written above.
HYDROGENICS CORPORATION
By: /s/PIERRE RIVARD
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Pierre Rivard
President
CIBC CAPITAL PARTNERS
By: /s/TEDDY ROSENBERG
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Teddy Rosenberg
Managing Director
MICRO-GENERATION TECHNOLOGY FUND, L.L.C.
BY: ARETE CORPORATION, MANAGER
By: /s/ROBERT W. SHAW, JR.
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Robert W. Shaw, Jr.
President
WORKING VENTURES CANADIAN FUND INC.
By: /s/BRIAN CARWANA
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Brian Carwana
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RELIANT ENERGY VENTURES, INC. (FORMERLY DEVELOPMENT
VENTURES, INC.)
By: /s/THOMAS S. GLANVILLE
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Thomas S. Glanville
President
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SIGNED, SEALED & DELIVERED
In the presence of:
/s/PIERRE RIVARD
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Witness Pierre Rivard
SIGNED, SEALED & DELIVERED In the presence of:
/s/JOE CARGNELLI
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Witness Joe Cargnelli
SIGNED, SEALED & DELIVERED In the presence of:
/s/BOYD TAYLOR
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Witness Boyd Taylor
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