UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entr y into a Material Definitive Agreement.
On June 3, 2024, SunHydrogen, Inc. (the “Company”) entered into a purchase agreement (the “Purchase Agreement”) with GHS Investments, LLC (“GHS”). Under the Purchase Agreement, the Company may sell, in its discretion (subject to the terms and conditions of the Purchase Agreement) up to an aggregate of $50,000,000 of common stock to GHS.
The Company has the right, in its sole discretion, subject to the conditions and limitations in the Purchase Agreement, to direct GHS, by delivery of a purchase notice from time to time (a “Purchase Notice”) to purchase (each, a “Purchase”) over the two-year term of the Purchase Agreement, a minimum of $100,000 and up to a maximum of $2,000,000 (the “Purchase Amount”) of shares of common stock (the “Purchase Shares”) for each Purchase Notice, provided that the parties may agree to waive such $2,000,000 limitation. The number of Purchase Shares the Company will issue under each Purchase will be equal to 112.5% of the Purchase Amount sold under such Purchase, divided by the Purchase Price per share (as defined under the Purchase Agreement). The “Purchase Price” is defined as 90% of the lowest end-of-day volume weighted average price of the common stock for the five consecutive business days immediately preceding the purchase date, including the purchase date.
The Purchase Agreement prohibits the Company from directing GHS to purchase any shares of common stock if those shares, when aggregated with all other shares of the Company’s common stock then beneficially owned by GHS and its affiliates, would result in GHS and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of the Company’s common stock.
There are no trading volume requirements or restrictions under the Purchase Agreement. The Company will control the timing and amount of any sales of its common stock to GHS. The Company may not deliver more than one Purchase Notice to GHS every five business days, except as the parties may otherwise agree. The Company may at any time in its sole discretion terminate the Purchase Agreement.
If an event of default (as defined under the Purchase Agreement) (all of which are outside the control of GHS) occurs and is continuing, the Company may not deliver to GHS any Purchase Notice.
The Company will pay a fee of 2% of the gross proceeds the Company receives from sales of common stock under the Purchase Agreement, to Icon Capital Group, LLC (“Icon”) pursuant to a placement agent agreement between the Company and Icon (the “Placement Agent Agreement”).
The shares were offered, and will be issued, pursuant to the Prospectus Supplement, dated June 3, 2024 to the Prospectus included in the Company’s Registration Statement on Form S-3 (Registration No. 333-276678) filed with the Securities and Exchange Commission on January 24, 2024.
GHS was also the purchaser under securities purchase agreements with the Company dated September 21, 2020, February 24, 2021 and November 17, 2022.
Sichenzia Ross Ference Carmel LLP, counsel to the Company, has issued an opinion to the Company regarding the validity of the securities to be issued in the offering. A copy of the opinion is filed as Exhibit 5.1 to this Current Report on Form 8-K.
The foregoing descriptions of the Purchase Agreement and Placement Agent Agreement are qualified in their entirety by reference to Exhibit 10.1 and Exhibit 10.2, respectively, attached hereto and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
| Exhibit No | Exhibit | |
| 5.1 | Opinion of Sichenzia Ross Ference Carmel LLP | |
| 10.1 | Purchase Agreement | |
| 10.2 | Placement Agent Agreement | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SUNHYDROGEN, INC. | |
| Date: June 3, 2024 | /s/ Timothy Young |
| Timothy Young | |
| Chief Executive Officer |
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