UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
Hyzon Motors Inc.
(Name of Issuer)
Class A Common Stock, par value $0.0001 per share
(Title of Class of Securities)
44951Y102
(CUSIP Number)
Zhijun “George” Gu
c/o Horizon Fuel Cell Technologies Pte. Ltd.
48 Toh Guan Road East
#05-124 Enterprise Hub
608586 Singapore
(630) 457-8618
(Name, address and telephone number of person
authorized to receive notices and communications)
Copies to:
Eric
M. Hellige, Esq.
c/o Pryor Cashman LLP
7 Times Square, 40th Floor
New York, NY 10036
Tel: (212) 326-0846
February 6, 2024
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box ☐.
The information required on the remainder of this cover page shall not be deemed to be “filed” for purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| 1 | NAME OF REPORTING PERSONS
Horizon Fuel Cell Technologies Pte. Ltd. (1) |
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ☐ (b) ☐ |
| 3 | SEC USE ONLY
|
| 4 | SOURCE OF FUNDS
OO |
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
☐ |
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Singapore |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
92,647,986 Shares (2) (3) |
| 8 | SHARED VOTING POWER
0 Shares | |
| 9 | SOLE DISPOSITIVE POWER
92,647,986 (2) (3) | |
| 10 | SHARED DISPOSITIVE POWER
0 Shares |
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
92,647,986 Shares (2) (3) |
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
☐ |
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
37.8% (4) |
| 14 | TYPE OF REPORTING PERSON
OO (5) |
| (1) | Hymas Pte. Ltd. (“Hymas”) is the record holder of 33,596,967 of the shares of Class A Common Stock, par value $0.0001 per share (“Shares”), of Hyzon Motors Inc. (the “Company”) reported herein. Hymas is 75.83% owned indirectly by Horizon Fuel Cell Technologies Pte. Ltd. (“Horizon”), through its subsidiaries, including Jiangsu Horizon New Energy Technologies Co. Ltd., a company incorporated under the laws of the People’s Republic of China (“JS Horizon”), and Horizon Fuel Cell Technology (Hong Kong) Ltd., a company incorporated under the laws of the Hong Kong Special Administrative Region of the People’s Republic of China (“HFCT HK”). Horizon, by reason of its ownership of 61.86% of the voting securities of JS Horizon, JS Horizon’s ownership of 100% of the voting securities of HFCT HK, and HFCT HK’s ownership of 100% of the voting securities of Hymas, ultimately has the right to elect or appoint the members of the governing body of Hymas and, therefore, to direct the management and policies of Hymas. As a result, Horizon has voting and investment power over the securities of the Company held of record by Hymas. Such powers are vested in the Board of Directors of Horizon. Horizon disclaims beneficial ownership of the securities reported herein, except to the extent of its pecuniary interest therein. |
| (2) | Includes 92,647,986 Shares of the Company, but does not include 17,956,042 Earnout Shares (as such term is defined in that certain Business Combination Agreement and Plan of Reorganization, dated as of February 8, 2021 (the “Business Combination Agreement”), by and among the Company, DCRB Merger Sub Inc., a wholly owned subsidiary of the Company, and Hyzon Motors USA Inc.) that are issuable to each person eligible to receive such Earnout Shares pursuant to the Business Combination Agreement (assuming no forfeiture by other Eligible Company Equityholders (as such term is defined in the Business Combination Agreement) of unexercised Company Options (as such term is defined in the Business Combination Agreement) or unvested Company RSUs (as such term is defined in the Business Combination Agreement) was finally determined). Pursuant to the Business Combination Agreement, (i) 38.71% of the Earnout Shares will be issuable if, prior to July 16, 2026, (a) the last reported Share price for at least 20 of any 30 consecutive trading days is at least $18.00 per Share, or (b) the Company consummates a transaction resulting in its stockholders having the right to receive consideration implying a value per Share of at least $18.00; (ii) 38.71% of the Earnout Shares will be issuable if, prior to July 16, 2026, (a) the last reported share price of the Shares for at least 20 of any 30 consecutive trading days is at least $20.00 per Share, or (b) the Company consummates a transaction resulting in its stockholders having the right to receive consideration implying a value per Share of at least $20.00; and (iii) 22.58% of the Earnout Shares will be issuable if, prior to July 16, 2026, (a) the last reported Share price for at least 20 of any 30 consecutive trading days is at least $35.00 per Share, or (b) the Company consummates a transaction resulting in its stockholders having the right to receive consideration implying a value per Share of at least $35.00. |
| (3) | Includes (i) 24,225,845 Shares underlying call options agreements with certain securityholders of Horizon pursuant to which such securityholders have the right to purchase Shares from Horizon and (ii) 34,825,174 Shares underlying T-Shares (as defined in Item 6) owned by certain securityholders of Horizon, all of which were sold pursuant to the Restructuring (as defined in Item 6). |
| (4) | Based on 245,002,825 Shares issued and outstanding as of October 31, 2023, as reported in the Company’s Quarterly Report on Form 10-Q, filed with the United States Securities and Exchange Commission on November 14, 2023. |
| (5) | A company limited by shares organized under the laws of the Republic of Singapore. |
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| 1 | NAME OF REPORTING PERSONS
Hymas Pte. Ltd. (1) |
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ☐ (b) ☐ |
| 3 | SEC USE ONLY
|
| 4 | SOURCE
OF FUNDS
OO |
| 5 | CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
☐ |
| 6 | CITIZENSHIP
OR PLACE OF ORGANIZATION
Republic of Singapore |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
33,596,967 Shares (2) |
| 8 | SHARED VOTING POWER
0 Shares | |
| 9 | SOLE DISPOSITIVE POWER
33,596,967 (2) | |
| 10 | SHARED DISPOSITIVE POWER
0 Shares |
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,596,967 Shares (2) |
| 12 | CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
☐ |
| 13 | PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13.7% (3) |
| 14 | TYPE
OF REPORTING PERSON
OO (4) |
| (1) | See footnote (1) to the table describing Horizon’s beneficial ownership above. |
| (2) | See footnote (2) to the table describing Horizon’s beneficial ownership above. |
| (3) | Based on 245,002,825 Shares issued and outstanding as of October 31, 2023, as reported in the Company’s Quarterly Report on Form 10-Q, filed with the United States Securities and Exchange Commission on November 14, 2023. |
| (4) | A company limited by shares organized under the laws of the Republic of Singapore. |
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| 1 |
NAME OF REPORTING PERSONS
Zhijun “George” Gu |
| 2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ☐ (b) ☐ |
| 3 |
SEC USE ONLY
|
| 4 |
SOURCE OF FUNDS
OO |
| 5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
☐ |
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
The People’s Republic of China |
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
21,247,654 Shares (1) |
| 8 |
SHARED VOTING POWER
0 Shares | |
| 9 |
SOLE DISPOSITIVE POWER
21,247,654 Shares (1) | |
| 10 |
SHARED DISPOSITIVE POWER
0 Shares |
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,247,654 Shares (1) |
| 12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)
☐ |
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5% (2) |
| 14 |
TYPE OF REPORTING PERSON
IN |
| (1) | Includes (i) 1,866,109 Shares, (ii) 5,537,500 Shares issuable upon the exercise of vested employee stock options granted under the Hyzon Motors Inc. 2020 Stock Incentive Plan (the “Plan”) on November 12, 2020, and (iii) 13,844,045 Shares underlying T-Shares (as defined in Item 6) acquired by Mr. Gu in the Restructuring. Employee stock options to purchase an additional 5,537,500 Shares, as previously reported by the Reporting Person, failed to vest and were terminated as of August 24, 2023 upon Mr. Gu’s resignation from the Board of Directors of Hyzon. Of the securities reported herein, 1,866,109 Shares are owned directly by Catalyst GZJ Holdings Limited, a British Virgin Islands business company (“Catalyst”). As the sole shareholder of Catalyst, Mr. Gu may be deemed to beneficially own the securities of the Issuer held by Catalyst. Mr. Gu disclaims beneficial ownership of the securities reported herein, except to the extent of his pecuniary interest therein. |
| (2) | Based on 245,002,825 Shares issued and outstanding as of October 31, 2023 as reported in the Company’s Quarterly Report on Form 10-Q, filed with the United States Securities and Exchange Commission on November 14, 2023, plus 5,537,500 shares issuable upon the exercise of vested employee stock options granted to Mr. Gu under the Plan. |
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ITEM 1. Security and Issuer.
This sixth amendment (the “Sixth Amendment”) to the original Schedule 13D, which was filed on September 21, 2021 (the “Original Schedule 13D”) and amended on January 11, 2023 (the “First Amendment”), on March 30, 2023 (the “Second Amendment”), on December 22, 2023 (the “Third Amendment”), on January 8, 2024 (the “Fourth Amendment”), and on January 29, 2024 (the “Fifth Amendment”), relates to the Class A Common Stock, par value $0.0001 per share (the “Shares”) of Hyzon Motors Inc. (the “Company”). The Company’s principal executive office is located at 475 Quaker Meeting House Road, Honeoye Falls, New York 14472.
ITEM 2. Identity and Background.
(a) This Sixth Amendment is filed jointly by Horizon Fuel Cell Technologies Pte. Ltd., a company incorporated under the laws of the Republic of Singapore, Hymas Pte. Ltd., a company incorporated under the laws of the Republic of Singapore, and Mr. Zhijun “George” Gu. Horizon, which indirectly owns 75.83% of Hymas through its subsidiaries, may be deemed to beneficially own the securities of the Company held directly by Hymas. Horizon, Hymas and Mr. Gu (collectively, the “Reporting Persons”) disclaim beneficial ownership of the securities reported herein, except to the extent of their pecuniary interest therein. The amended joint filing agreement of the Reporting Persons was filed as Exhibit 7 to the Fourth Amendment.
(b) The address for Horizon is 48 Toh Guan Road East, #05-124 Enterprise Hub 608586, Singapore.
The address for Hymas is c/o Horizon Fuel Cell Technologies Pte. Ltd., 48 Toh Guan Road East, #05-124 Enterprise Hub 608586, Singapore
The address for Mr. Gu is c/o Horizon Fuel Cell Technologies Pte. Ltd., 48 Toh Guan Road East, #05-124 Enterprise Hub 608586, Singapore.
(c) Mr. Gu is the Chairman of Horizon.
(d)-(e) During the five years preceding the date of this filing, the Reporting Persons have not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Mr. Gu is a citizen of the People’s Republic of China.
ITEM 3. Source and Amount of Funds or Other Consideration.
The Reporting Persons originally received the Shares reported in the Original Schedule 13D as result of the transactions described in the Business Combination Agreement. Except for certain nominal consideration paid by certain Reporting Persons in connection with the Restructuring (as disclosed in Item 6), the Reporting Persons have not paid any funds or other consideration to acquire the securities reported herein.
ITEM 4. Purpose of Transaction.
The Reporting Persons are filing this Sixth Amendment to report that Hymas has sold Shares, as described in Item 6.
From time to time, the Reporting Persons may acquire beneficial ownership of additional securities of the Company, by purchase or otherwise, including additional purchases of shares in the open-market from time to time and upon receipt from the Company of future equity compensation awards for which Mr. Gu qualifies, including, but not limited to, stock options and restricted stock units. In addition, from time to time, the Reporting Persons may dispose of all or a portion of the securities of the Company that are beneficially owned by the Reporting Persons.
Other than as described above, the Reporting Persons do not have any plan or proposal that relate to or would result in any of the transactions involving the Company described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.
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ITEM 5. Interest in Securities of the Issuer.
The percentages used in this filing are calculated based on the number of outstanding Shares, 245,002,825, reported as of October 31, 2023, in the Issuer’s Form 10-Q filed with the Securities and Exchange Commission on November 14, 2023, plus, in the case of Mr. Gu’s beneficial ownership calculation, the 5,537,500 Shares issuable upon the exercise of vested employee stock options granted to Mr. Gu under the Plan.
Horizon
| (a) | Aggregate number of shares beneficially owned: 92,647,986 |
Percentage: 37.8%
| (b) | Number of shares as to which such person has: |
| (i) | Sole power to vote or direct the vote: 92,647,986 |
| (ii) | Shared power to vote or direct the vote: 0 |
| (iii) | Sole power to dispose or to direct the disposition of: 92,647,986 |
| (iv) | Shared power to dispose or to direct the disposition of: 0 |
| (c) | Transactions effected during the past sixty days: |
Other than pursuant to the transactions described in the Fourth Amendment and Fifth Amendment, which are incorporated herein by reference, the Reporting Person has not acquired or disposed of any Shares during the past sixty days.
| (d) | Right to dividends or proceeds of sale: None. |
| (e) | Not applicable. |
Hymas
| (a) | Aggregate number of shares beneficially owned: |
Percentage: 13.7%
| (b) | Number of shares as to which such person has: |
| (i) | Sole power to vote or direct the vote: 33,596,967 |
| (ii) | Shared power to vote or direct the vote: 0 |
| (iii) | Sole power to dispose or to direct the disposition of: 33,596,967 |
| (iv) | Shared power to dispose or to direct the disposition of: 0 |
| (c) | Transactions effected during the past sixty days: |
Other than pursuant to the transactions described in the Fourth Amendment and Fifth Amendment, which are incorporated herein by reference, the Reporting Person has not acquired or disposed of any Shares during the past sixty days.
| (d) | Right to dividends or proceeds of sale: None. |
| (e) | Not applicable. |
Zhijun “George” Gu
| (a) | Aggregate number of shares beneficially owned: |
Percentage: 8.5%
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| (b) | Number of shares as to which such person has: |
| (i) | Sole power to vote or direct the vote: 21,247,654 |
| (ii) | Shared power to vote or direct the vote: 0 |
| (iii) | Sole power to dispose or to direct the disposition of: 21,247,654 |
| (iv) | Shared power to dispose or to direct the disposition of: 0 |
| (c) | Transactions effected during the past sixty days: |
Other than pursuant to the transactions described in the Fourth Amendment, which are incorporated herein by reference, the Reporting Person has not acquired or disposed of any Shares during the past sixty days.
| (d) | Right to dividends or proceeds of sale: None. |
| (e) | Not applicable. |
ITEM 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
On February 6, 2024, Hymas and Long Focus Capital Master Ltd., a Cayman Islands company (“Long Focus Capital”) entered into a Stock Purchase Agreement (the “Stock Purchase Agreement”) pursuant to which Hymas sold 4,000,000 Shares to Long Focus Capital. The Stock Purchase Agreement is attached as Exhibit 9 to this Sixth Amendment.
Except as set forth in this Sixth Amendment, to the best knowledge of the Reporting Persons, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person, with respect to any securities of the Company, including but not limited to, transfer or voting of any of the securities of the Company, joint ventures, loan or option arrangements, puts or calls, guarantees or profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power over the securities of the Company.
ITEM 7. Materials to be Filed as Exhibits.
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| Horizon Fuel Cell Technologies Pte. Ltd. | ||
| Dated: February 8, 2024 | By: | /s/ Chi Zhang |
| Name: | Chi Zhang | |
| Title: | Chief Executive Officer | |
| Hymas Pte. Ltd. | ||
| Dated: February 8, 2024 | By: | /s/ Theodore H. Swindells |
| Name: | Theodore H. Swindells | |
| Title: | Director | |
| Zhijun Gu | ||
| Dated: February 8, 2024 | By: | /s/ Zhijun Gu |
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Exhibit 9
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of February 6, 2024 (the “Agreement”) by and between Hymas Pte Ltd., a company formed under the laws of Singapore having an address at 48 Toh Guan Road East, #05-124 Enterprise Hub, Singapore 608586 (“Seller”), and Long Focus Capital Master Ltd., a Cayman Islands company having an address c/o Long Focus Capital Management LLC, 207 Calle del Parque, A&M Tower, 8th Floor, San Juan, PR 00912 (“Buyer”).
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from Seller, all present and future right, title and interest in and to four (4) million shares of Class A Common Stock, par value $0.0001 per share (the “Acquired Stock”), of Hyzon Motors, Inc., a Delaware corporation (“Hyzon”), upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual agreements, covenants and provisions herein contained, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Sale of the Company Stock. Upon the terms and subject to the conditions of this Agreement, on the date hereof, Seller hereby sells, transfers and assigns to Buyer the Acquired Stock and, on the date hereof, shall deliver to Buyer a certificate representing the Acquired Stock, duly endorsed or accompanied by stock powers duly endorsed in blank, or evidence of the book entry transfer of the Acquired Stock on the records of Continental Stock Transfer & Trust, the transfer agent for the Acquired Stock (the “Transfer Agent”). Upon the terms and subject to the conditions of this Agreement, on the date hereof, Buyer hereby purchases and acquires the Acquired Stock and, in full payment therefor, shall pay to Seller on the date hereof $ 0.40 (the “Purchase Price”) by bank check or wire transfer of immediately available funds.
Section 1.2 Transfer Taxes; Certain Expenses. Seller shall be responsible for all transfer and similar taxes assessed or payable in connection with the sale and transfer of the Acquired Stock. Buyer shall not pay or be liable for or be required to pay any income, capital gains or other taxes incurred by Seller as a result of the sale of the Acquired Stock to Buyer, all of which shall be borne and paid by Seller.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Section 2.1 Title to the Acquired Stock. Seller is the sole beneficial and record owner of the Acquired Stock free and clear of any setoff, claim, restriction, pledge, security interest, encumbrance or any other charges (collectively “Encumbrances”). Upon delivery to Seller of the Purchase Price and receipt by Buyer of the Acquired Stock, either in certificated form or by book entry on the records of the Transfer Agent, Buyer shall have good and marketable title to the Acquired Stock, free and clear of all Encumbrances.
Section 2.2 Authorization. Seller has full power and authority to enter into this Agreement and to carry out the transactions contemplated hereby. This Agreement constitutes the valid and binding obligation of Seller, enforceable in accordance with its terms.
Section 2.3 Consents. No consent or waiver of any party is required to be obtained by Seller in connection with the execution, delivery and performance of this Agreement.
Section 2.4 Brokerage. Seller has not entered into any arrangement or agreement binding upon Seller which would give rise to any claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement, the fees and expenses of which shall be borne by Buyer. Seller shall pay, and hold Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys fees and out-of-pocket expenses) arising in connection with any such claim.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 3.1 Authorization and Binding Obligation. Buyer has the requisite power and authority to execute, deliver and perform this Agreement. This Agreement has been duly executed by Buyer and constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms.
Section 3.2 Purchase For Own Account. Buyer hereby confirms that the Acquired Stock purchased hereunder will be acquired for investment for Buyer’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part of the Acquired Stock in contravention of applicable law, and that Buyer has no present intention of selling, granting any participation in, or otherwise distributing the same. Buyer does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to the person or to any third person in or with respect to any of the Acquired Stock.
Section 3.3 Accredited Investor. Buyer represents that it is an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”).
Section 3.4 Restricted Securities. Buyer understands that the shares of the Acquired Stock it is acquiring pursuant to this Agreement are “restricted securities” within the meaning of Rule 144 under the Securities Act (“Rule 144”) inasmuch as such shares will be acquired from Seller in a transaction not involving a public offering and that under the federal securities laws and applicable regulations such shares may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Buyer represents that it is familiar with Rule 144 and understands the resale limitations imposed thereby and by the Securities Act.
Section 3.5 Legends. Buyer understands that the certificates evidencing the Acquired Stock will bear an appropriate legend restricting transfers.
Section 3.6 Seller is an Affiliate. Buyer understands that Seller is the beneficial owner of more than 10% of the capital stock of Hyzon and, as such, is an “affiliate” (as defined in the Securities Act) of Hyzon and may have knowledge of, and access to, information, some of which may not be favorable, relating to the business and operations of Hyzon that is not public and is not available to Buyer. Certain of such information regarding Hyzon that is known to Seller may be material to Buyer’s investment decision relating to the Acquired Stock.
Section 3.7 Due Diligence. Buyer has been given the opportunity for a reasonable time prior to the date hereof to ask questions of, and receive answers from, Hyzon or its representatives concerning the Acquired Stock, and other matters pertaining to this investment, and has been given the opportunity for a reasonable time prior to the date hereof to obtain such additional information in connection with Hyzon in order for Buyer to evaluate the merits and risks of purchase of the Acquired Stock, to the extent Hyzon possesses such information or can acquire it without unreasonable effort or expense.
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ARTICLE IV
MISCELLANEOUS
Section 4.1 Governing Law: Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to conflicts of law).
Section 4.2 Headings and Captions. The headings and captions contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
Section 4.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute but one and the same instrument.
Section 4.4 Entire Agreement. This Agreement constitutes the entire understanding among the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and preliminary agreements made prior to the date hereof.
Section 4.5 Assignment. This Agreement shall not be assignable by any party hereto without the express prior written consent of the other. Nothing in this Agreement is intended to confer upon any person, other than the parties hereto and their successors or permitted assigns, any rights or remedies under or by reason of this Agreement.
Section 4.6 Separability. If any section, subsection or provision of this Agreement, or the application of such section, subsection or provision, is held invalid, the remainder of this Agreement and the application of such section, subsection or provision to persons or circumstances other than those to which it is held invalid shall not be affected
Section 4.7 Notices. All notices, consents or other communications required or permitted to be given by any party hereunder shall be in writing and shall be given by delivery or by certified or registered mail, postage prepaid, nationally recognized overnight courier, postage prepaid, or by facsimile (if followed by a copy sent by overnight courier) to the respective address in the preamble of this Agreement or at such other address as any party may from time to time specify to the other parties hereto. Any notice, consent or other communication required or permitted to be given hereunder shall be deemed to have been given on the date of personal delivery on the second business day following the date of mailing or, in the case of overnight courier or facsimile, the next business day following the date of delivery to such overnight courier
Section 4.8 Costs. Each party will pay its own costs and expenses involved in carrying out the transactions contemplated by this Agreement.
Section 4.9 Amendment. This Agreement may not be amended except by an instrument in writing signed by or on behalf of the parties hereto.
Section 4.10 Further Assurances. Subject to the terms and conditions of this Agreement, each of the parties hereto will use all reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable, under applicable laws and regulations or otherwise, to fulfill its or his obligations under this Agreement and to consummate the transactions contemplated by this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first written above.
| Hymas Pte Ltd. | ||
| By: | /s/ Theodore H. Swindells | |
| Name: Theodore H. Swindells | ||
| Title: Director | ||
| Long Focus Capital Master Ltd. | ||
| By: Long Focus Capital Management LLC, its investment adviser | ||
| By: | /s/ John B. Helmers | |
| Name: JOHN B. HELMERS | ||
| Title: CEO | ||
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