VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), is dated as
of April 30, 2007 by and between Green Shelters Innovations Ltd.,
an entity organized under the laws of the Republic of Cyprus
("GSI"), and __________________________________ ("Stockholder")
an individual.
W I T N E S S E T H:
WHEREAS, GSI and Astris Energi Inc., a corporation organized
under the laws of the Province of Ontario, Canada (the "Company"),
entered into, and executed, a binding letter of intent (the "Initial
Agreement"), providing for, among other things, the sale of all or
substantially all of the assets of the Company to GSI (the "Sale")
and, that GSI would provide a loan (the "Loan") to the Company to
fund operating costs at a monthly amount of US$150,000 or such
greater amount as GSI and the Company shall agree to pursuant to a
secured convertible promissory note (the "Note") to be issued by the
Company in favour of GSI;
WHEREAS, pursuant to the Initial Agreement, and following
the execution and delivery of this Agreement, GSI and the Company
will enter into an Asset Purchase Agreement (as the same may be
modified or amended from time to time, the "Purchase Agreement")
to consummate the Sale and the other transactions contemplated
thereby, on the terms and subject to the conditions set forth therein;
WHEREAS, as of the date hereof, the Stockholder beneficially
and of record owns the number of Voting Shares (as defined herein)
set forth, and in the manner reflected, on Attachment A hereto
(the "Owned Shares");
WHEREAS, as a condition to GSI providing the Loan to the Company,
and as a material inducement therefor, and as a condition to GSI's
willingness to enter into and perform its obligations under the
Purchase Agreement, GSI has required that Stockholder agrees
i) to vote, or cause to be voted, all of the Owned Shares,
together with any shares of the common stock of the Company,
no par value, (the "Company Common Stock") acquired after the
date of this Agreement, whether upon the exercise of options or
warrants, conversion of convertible securities or otherwise, and any
other voting securities of the Company (whether acquired heretofore or
hereafter) that are beneficially owned by Stockholder or over
which Stockholder has, directly or indirectly, the right to vote
(collectively, the "Voting Shares"), in favor of (a) adoption of
the Purchase Agreement, (b) approval of the transactions contemplated
by the Initial Agreement and the Purchase Agreement, including the Sale,
and (c) any other matter that is required by applicable law or a
governmental authority to be approved by the stockholders of the
Company to facilitate the transactions contemplated by the Initial
Agreement and the Purchase Agreement, including the Sale and (ii)
to take the other actions described herein; and
WHEREAS, Stockholder desires to express its support for the
Sale and the other transactions contemplated by the Initial
Agreement and the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration given to each party hereto,
the receipt of which is hereby acknowledged, the parties agree
as follows:
1. Agreement to Vote; Non-Solicit; Irrevocable Proxy.
1.1 Agreement to Vote. Stockholder hereby agrees that,
during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, or any adjournment or
postponement thereof, Stockholder shall be present (in person
or by proxy) and vote (or cause to be voted) all of its Voting Shares
(a) in favor of (1) adoption of the Purchase Agreement, (2) approval
of the transactions contemplated by the Initial Agreement and the
Purchase Agreement, including the Sale, and (3) approval of any
other matter that is required by applicable law or a governmental
authority to be approved by the stockholders of the Company to
facilitate the transactions contemplated by the Initial Agreement
and the Purchase Agreement, including the Sale; and (b) against (1)
any proposal involving any acquisition of the Company, any merger
or consolidation with or involving the Company, or any acquisition
of all or any portion of the stock of the Company (including without
limitation, by tender offer) or for the acquisition of all or any
portion of the assets of the Company (any such transaction being
hereinafter referred to as an "Alternate Acquisition Proposal"),
(2) any extraordinary dividend by the Company, (3) any change in
the capital structure of the Company (other than any change in
capital structure resulting from the Sale), (4) any liquidation
or winding up of the Company and (5) any other action that could
reasonably be expected to (i) impede, interfere with, delay,
postpone or attempt to discourage or have the effect of
discouraging the consummation of the transactions contemplated
by the Initial Agreement and the Purchase Agreement, including
the Sale, (ii) result in a breach of any of the covenants,
representations, warranties or other obligations or agreements
of the Company under the Purchase Agreement that would reasonably
be expected to have a material adverse effect on the Company or
(iii) impair or adversely affect the respective abilities of
the Company and GSI to consummate the transactions contemplated
by the Initial Agreement and the Purchase Agreement, including
the Sale.
1.2 Non-Solicit. Stockholder hereby agrees that,
during the time this Agreement is in effect and except as
otherwise permitted by the Purchase Agreement, it will not
directly or indirectly, (a) initiate, solicit or knowingly encourage
or facilitate any inquiries with respect to, or the making of, an
Alternate Acquisition Proposal, (b) engage in any negotiations
concerning, or provide any confidential information or data to,
or have any discussions with, any Person relating to an Alternate
Acquisition Proposal, (c) approve or recommend or propose publicly
to approve or recommend, any Alternate Acquisition Proposal or
(d) approve or recommend, or propose publicly to approve or
recommend, or execute or enter into, any letter of intent, agreement
in principle, merger agreement, acquisition agreement, option agreement
or other similar agreement relating to any Alternate Acquisition
Proposal or propose publicly or agree to do any of the foregoing
relating to any Alternate Acquisition Proposal, provided that
nothing in this Section 1.2 shall prevent the Stockholder from
taking any action as are required to comply with the Stockholder's
fiduciary duties as an officer or director of the Company as
permitted by the Initial Agreement.
1.3 Irrevocable Proxy. Solely with respect to the
matters described in Section 1.1, Stockholder shall have delivered
to GSI a copy of Stockholder's duly executed and valid proxy
(and any amendment of such proxy) consistent with the terms of
this Agreement, with respect to the special meeting of the
stockholders of the Company to be duly called for purposes of the
Company's stockholders approving the Purchase Agreement and the
transactions contemplated thereby (including the Sale)
(the "Stockholders Meeting"), at least five business days prior to
the Stockholders Meeting. If (i) Stockholder has not delivered a
copy of such proxy at least five business days prior to the
Stockholders Meeting, (ii) the proxy (and/or any amendment thereof)
does not authorize votes consistent with the terms of this
Agreement, or is otherwise inconsistent with the terms of this
Agreement, or (iii) if such votes are subsequently rescinded, revoked
or modified in any manner inconsistent with the requirements of
Section 1.1, then Stockholder hereby irrevocably appoints GSI
as its proxy to vote all Voting Shares owned by Stockholder
beneficially and of record solely on the matters described in
Section 1.1, and in accordance therewith, effective from and
after such appointment until the valid termination of this Agreement.
Stockholder agrees to execute any further agreement or form reasonably
necessary or appropriate to confirm and effectuate the grant of the
proxy contained herein.
2. Representations and Warranties of the Stockholders.
Stockholder hereby represents and warrants to GSI as follows:
2.1 Power; Due Authorization; Binding Agreement.
Stockholder has full power and authority to execute and deliver
this Agreement, to perform his obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Stockholder
and constitutes a valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms,
except that enforceability may be subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium
or other similar laws affecting or relating to the enforcement
of creditors rights generally and to general principles of equity.
2.2 Ownership of Shares. On the date hereof, the
Owned Shares set forth opposite Stockholder's name on Attachment
A hereto are owned of record and beneficially by Stockholder in
the manner reflected thereon and include all of the Voting Shares
owned of record or beneficially by Stockholder. All Owned Shares
are held free and clear of any encumbrances and will be held free
and clear of any encumbrances as of the date of the Stockholders
Meeting. As of the date hereof, Stockholder has, and as of the
date of the Stockholders Meeting, Stockholder will have (except
as otherwise permitted by this Agreement), sole voting power
(to the extent such securities have voting power) and sole
dispositive power with respect to all of the Owned Shares.
2.3 No Conflicts. The execution and delivery of
this Agreement by Stockholder does not, and the performance
of the terms of this Agreement by Stockholder will not,
(a) except for filings with the Securities and Exchange Commission,
require Stockholder to obtain the consent or approval of,
or make any filing with or notification to, any governmental
authority, (b) require the consent or approval of any other person
pursuant to any agreement, obligation or instrument binding
on Stockholder or its properties and assets, (c) violate
any other agreement to which Stockholder is a party including
any voting agreement, stockholders agreement, irrevocable
proxy or voting trust, except for any consent, approval,
filing or notification which has been obtained as of the date
hereof or the failure of which to obtain, make or give
would not, or any conflict or violation which would not,
impair in any material respect Stockholder's ability to
perform its obligations under this Agreement or in
any event impair any Stockholder's ability to perform
its obligations under Section 1.1 hereof. Except for
this Agreement, the Voting Shares are not, with respect
to the voting or transfer thereof, subject to any other
agreement, including any voting agreement, stockholders
agreement, irrevocable proxy or voting trust.
2.3 Acknowledgment. Stockholder
understands and acknowledges that each of GSI and the
Company is entering into the Purchase Agreement in reliance
upon Stockholder's execution, delivery and performance of this Agreement.
3. Certain Covenants of Stockholder. Stockholder hereby
covenants and agrees with GSI as follows:
3.1 Restriction on Transfer, Proxies and Non-Interference.
Stockholder hereby agrees, while this Agreement is in effect,
at any time prior to the completion of the Stockholders Meeting
(including any adjournment or postponement thereof), not to
(a) sell, transfer, pledge, encumber (except due to this Agreement),
assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect
to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, or limitation on the voting rights of, any of the
Voting Shares, provided that nothing in this Agreement shall
prohibit the exercise by Stockholder of any options to purchase
Voting Shares or conversion of convertible securities pursuant
to which Stockholder will acquire Voting Shares, (b) grant any
proxies or powers of attorney, deposit any Voting Shares into
a voting trust or enter into a voting agreement with respect
to any Voting Shares, (c) take any action that would cause
any representation or warranty of Stockholder contained herein
to become untrue or incorrect or have the effect of preventing
or disabling any Stockholder from performing its obligations
under this Agreement or (d) commit or agree to take any of the
foregoing actions. Any transfer of Voting Shares not permitted
hereby shall be null and void. If any involuntary transfer of
any of the Voting Shares shall occur (including a sale by
Stockholder's trustee in any bankruptcy, or a sale to a purchaser
at any creditor's or court sale), the transferee (which term, as
used herein, shall include any and all transferees and subsequent
transferees of the initial transferee) shall take and hold such
Voting Shares subject to all of the restrictions, liabilities
and rights under this Agreement, which shall continue in full
force and effect until the earlier of (i) the date on which
such restrictions, liabilities and rights terminate pursuant
to this Agreement and (ii) a valid termination of this Agreement.
3.2 Additional Shares. Stockholder hereby agrees,
while this Agreement is in effect, to promptly notify GSI of the
number of any new Voting Shares acquired by Stockholder, if any,
after the date hereof. Any such shares shall be subject to the
terms of this Agreement as though owned by Stockholder on the date hereof.
3.3 No Limitations on Actions. Stockholder signs
this Agreement solely in its capacity as the record and/or
beneficial owner, as applicable, of its Voting Shares; this
Agreement shall not limit or otherwise affect the actions of
Stockholder or designee of Stockholder in any other capacity,
including such person's capacity, if any, as an officer of the
Company or a member of the board of directors of the Company;
and nothing herein shall limit or affect the Company's rights
in connection with the Purchase Agreement.
3.4 Further Assurances. From time to time, at the
request of GSI and without further consideration, Stockholder shall
execute and deliver such additional documents and take all such
further action as may be necessary or desirable to consummate and
make effective the transactions contemplated by this Agreement.
4. Miscellaneous.
4.1 Termination of this Agreement. Prior to the
execution of the Purchase Agreement, this Agreement shall only
terminate upon the termination of that certain binding letter of
intent, dated as of April 13, 2007, between the Company and GSI,
in accordance with its terms. Following the execution of the
Purchase Agreement, this Agreement shall terminate upon the earlier
of (i) termination of the Purchase Agreement in accordance with
its terms and (ii) the date upon which the transactions contemplated
by the Initial Agreement and the Purchase Agreement (including the Sale)
are consummated.
4.2 Effect of Termination. In the event of termination
of this Agreement pursuant to Section 4.1, this Agreement shall
become void and of no effect with no liability on the part of
any party hereto; provided, however, no such termination shall
relieve any party hereto from any liability for any breach
of this Agreement occurring prior to such termination.
4.3 Entire Agreement; Assignment. This Agreement
constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. Nothing in this
Agreement, express or implied, is intended to or shall confer upon
any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. This Agreement
shall not be assigned by operation of law or otherwise and shall
be binding upon and inure solely to the benefit of each party
hereto; provided however, GSI shall have the right to assign this
Agreement and any of its rights and interests or obligations under
this Agreement to an affiliate of GSI.
4.4 Amendments. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by each of the parties hereto.
4.5 Notices. All notices, requests, claims,
demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly received
if so given) by hand delivery, by facsimile transmission or by mail
(registered or certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following addresses:
If to GSI:
Green Shelters Innovations, Ltd.
Attn: Xxxxx Xxxxxxxx
48, Themistokli Dervi
Centennai Building, Office
Fax:
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with a copy to:
Xxxxxxx XxXxxxxxx LLP
Attn: Xxxx Xxxxxxxxx, Esq.
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Stockholder:
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Attn:
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Fax:
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with a copy to:
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Attn:
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Fax:
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or to such other address as the person to whom notice is given
may have previously furnished to the others in writing in the
manner set forth above.
4.6 Governing Law. (a) This Agreement shall be
governed by and construed in accordance with the laws of the
Province of Ontario, Canada, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws
thereof.
(a) Each party hereto irrevocably submits to the
jurisdiction of the Province of Ontario in any action arising out
of or relating to this Agreement, and hereby irrevocably agrees that
all claims in respect of such action may be heard and determined
in such court. Each party hereto hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The parties
hereto further agree, to the extent permitted by law, that final
and unappealable judgment against any of them in any action or
proceeding contemplated above shall be conclusive and may be
enforced in any other jurisdiction within or outside Canada by
suit on the judgment, a certified copy of which shall be
conclusive evidence of the fact and amount of such judgment.
(b) To the extent that any party hereto has or hereafter
may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, each party
hereto hereby irrevocably waives such immunity in respect of
its obligations with respect to this Agreement.
(c) Each party hereto waives, to the fullest extent
permitted by applicable laws, any right it may have to a trial by
jury in respect of any action, suit or proceeding arising out of
or relating to this Agreement. Each party hereto certifies that it
has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications set forth above in this Section.
4.7 Remedies. The parties agree that irreparable damage
would occur in the event that any provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto
shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the courts of the Province of Ontario, this
being in addition to any other remedy to which they are entitled under
Applicable Law or in equity.
4.8 Counterparts. This Agreement may be executed by
facsimile and in two or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute
one and the same Agreement.
4.9 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law but if any
provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of
any provision in such jurisdiction, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had
never been contained herein.
4.10 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of
this Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes," or "including" are used
in this Agreement, they shall be deemed to be followed by the words
"without limitation."
4.11 No Presumption Against Drafter. Each of the
parties hereto has jointly participated in the negotiation and
drafting of this Agreement. In the event of an ambiguity or
a question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by each of the parties
hereto and no presumptions or burdens of proof shall arise
favoring any party hereto by virtue of the authorship of any
of the provisions of this Agreement.
[Signature Page Follows.]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first
above written.
Green Shelters Innovations Ltd.
By:
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Name: Xxxxx Xxxxxxxx
Title: Director
Stockholder
By:
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ATTACHMENT A
Record and Beneficial Ownership of the Voting Shares
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Stockholder
Shares of Option to
Common Stock Owned Acquire
Common Stock
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