0000040730-01-500147.txt : 20011030
0000040730-01-500147.hdr.sgml : 20011030
ACCESSION NUMBER: 0000040730-01-500147
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 8
FILED AS OF DATE: 20011025
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: HYDROGENICS CORP
CENTRAL INDEX KEY: 0001119985
STANDARD INDUSTRIAL CLASSIFICATION: MOTORS & GENERATORS [3621]
IRS NUMBER: 000000000
STATE OF INCORPORATION: A6
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-60857
FILM NUMBER: 1766066
BUSINESS ADDRESS:
STREET 1: 100 CASTER AVE
STREET 2: WOODBRIDGE ONTARIO
CITY: CANADA L4L 5Y9
STATE: A6
ZIP: 00000
BUSINESS PHONE: 9058518866
MAIL ADDRESS:
STREET 1: 100 CASTER AVE
STREET 2: WOODBRIDGE ONTARIO
CITY: CANADA L4L 5Y9
STATE: A6
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: GENERAL MOTORS CORP
CENTRAL INDEX KEY: 0000040730
STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711]
IRS NUMBER: 380572515
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: 300 RENAISSANCE CTR
STREET 2: MAIL CODE: 482-C34-D71
CITY: DETROIT
STATE: MI
ZIP: 48265-3000
BUSINESS PHONE: 3135565000
MAIL ADDRESS:
STREET 1: 300 RENAISSANCE CTR
STREET 2: MAIL CODE: 482-C34-D71
CITY: DETROIT
STATE: MI
ZIP: 48265-3000
SC 13D
1
hydrogenicsexh7.txt
GMC AND HYDROGENICS CORP. INFORMATION
Exhibit 7 Execution Copy
BOYD TAYLOR
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
RIGHT OF FIRST REFUSAL AGREEMENT
October 16, 2001
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THIS AGREEMENT is made October 16, 2001
BETWEEN:
BOYD TAYLOR, and individual resident in the Province of Ontario
(the "Founder")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by the laws
of the State of Delaware,
("GM")
RECITALS:
A. GM and the Founder each beneficially owns or exercises control or
direction over common shares in the capital of Hydrogenics Corporation
(the "Corporation"); and
B. The Parties wish to enter into an agreement granting GM with a right of
first refusal to acquire the shares of the Corporation owned by the
Founder.
THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 Definitions
Whenever used in this Agreement, the following words and terms have the meanings
set out below:
"Acceptance Notice" has the meaning given to it in subsection 2.3.
"Acceptance Period" has the meaning given to it in subsection 2.2.
"Affiliate" means, with respect to any specified Party, any company that
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Party specified. For
purposes of this definition, "control" including with correlative
meanings, the terms "controlled by" and "under common control with" means
ownership directly or indirectly of more than fifty percent (50%) of the
equity capital having the right to vote for election of directors (or in
the case of an entity other than a corporation, the equivalent management
authority); provided that a pension plan, profit sharing plan, or advisor
to such a plan that does not buy, sell or vote securities at the order,
direction or recommendation of GM shall not be deemed to be an "Affiliate"
of GM.
"Agreement" means this agreement, including all schedules, and all
amendments or restatements as permitted, and references to "Article" or
"Section" mean the specified Article or Section of this Agreement.
"Business Day" means any day, other than a Saturday or Sunday, on which
the Corporation's principal bank is open for commercial banking business
in both Toronto, Ontario and New York, New York during normal banking
hours.
"Competitor" means any Person in active competition with GM in the
automotive or fuel cell industry.
"Offeror" has the meaning given to it in subsection 2.1.
"Parties" means, collectively, GM and the Corporation and "Party" means
any one of them.
"Person" means any individual, sole proprietorship, partnership, firm,
entity, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, body corporate, government, government
regulatory authority, governmental department, agency, commission, board,
tribunal, dispute settlement panel or body, bureau, court, and where the
context requires any of the foregoing when they are acting as trustee,
executor, administrator or other legal representative.
"Purchase Offer" has the meaning given to it in subsection 2.1.
"Sale Notice" has the meaning given to it in subsection 2.2.
"Shares" means common shares in the capital of the Corporation owned by
the Founder.
1.2 Certain Rules of Interpretation
In this Agreement:
(a) Governing Law - This Agreement is a contract made under and shall be
governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario.
(b) Headings - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
(c) Including - Where the word "including" or "includes" is used in this
Agreement, it means "including (or includes) without limitation".
(d) No Strict Construction- The language used in this Agreement is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any Party.
(e) Number and Gender - Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(f) Severability - If, in any jurisdiction, any provision of this
Agreement or its application to any Party or circumstance is
restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without
invalidating the remaining provisions of this Agreement and without
affecting the validity or enforceability of such provision in any
other jurisdiction or without affecting its application to
other Parties or circumstances.
(g) Statutory References - A reference to a statute includes all
regulations made pursuant to such statute and, unless otherwise
specified, the provisions of any statute or regulation which amends,
supplements or supersedes any such statute or any such regulation.
(h) Time - Time is of the essence in the performance of the Parties'
respective obligations.
(i) Time Periods - Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done shall
be calculated by excluding the day on which the period commences and
including the day on which the period ends and by extending the
period to the next Business Day following if the last day of the
period is not a Business Day.
1.3 Entire Agreement
This Agreement and the agreements and other documents required to be delivered
pursuant to this Agreement, constitute the entire agreement between the Parties
and set out all the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to the
subject matter of this Agreement and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written. There are
no covenants, promises, warranties, representations, conditions, understandings
or other agreements, oral or written, express, implied or collateral between the
Parties in connection with the subject matter of this Agreement except as
specifically set forth in this Agreement and any document required to be
delivered pursuant to this Agreement.
ARTICLE 2
RIGHT OF FIRST REFUSAL
2.1 Third Party Offer
For so long as GM and its Affiliates continue to hold in the aggregate not less
than 10% of the issued and outstanding common shares in the capital of the
Corporation, in the event that:
(a) the Founder receives from any Person a bona fide offer to purchase
or otherwise acquire, directly or indirectly, substantially all of
the Shares for a purchase price payable in cash, shares or other
consideration upon closing, or
(b) the Founder receives from a Competitor a bona fide offer to purchase
or otherwise acquire, directly or indirectly, any of the Shares for
a purchase price payable in cash, shares or other consideration upon
closing,
(each such offer being referred to in this section 2 as a "Purchase Offer" and
each such offeror or Competitor, as the case may be, being referred to in this
section 2 as the "Offeror") and the Founder intends to accept such Purchase
Offer if the right of first refusal provided herein is not exercised, the
Founder shall be free, subject to the terms hereof, to sell the Shares to the
Offeror at the price and upon the terms and conditions set forth in the Purchase
Offer, provided the Founder has first offered the Shares to GM in the manner and
on the terms specified below and GM has not given proper notice as specified
below that it intends to purchase the Shares.
2.2 Sale Notice
Whenever the Founder receives a Purchase Offer which satisfies the requirements
of subsection 2.1 and intends to accept such Purchase Offer subject only to the
provisions of this Agreement, the Founder shall so advise GM by giving to it a
notice of sale (a "Sale Notice"), together with a true copy of the Purchase
Offer within 5 (five) Business Days of receipt of such Purchase Offer. In such
Sale Notice, the Founder shall identify the Offeror (and any persons controlling
the Offeror to the knowledge of the Founder) and shall offer to sell the Shares
to GM at the same or cash equivalent aggregate purchase price (which shall be
specified in the Sale Notice) and in all other respects on the same terms and
conditions as provided in the Purchase Offer. The offer contained in the Sale
Notice shall be irrevocable, except with the consent of GM, and shall be open
for acceptance for a period of 5 (five) Business Days after the date upon which
the Sale Notice was received by GM (the "Acceptance Period").
2.3 Rights of GM
Upon receiving the Sale Notice GM shall have the right to purchase the Shares
upon the terms set forth in the Sale Notice.
Within the Acceptance Period GM may give to the Founder a notice in writing (an
"Acceptance Notice") accepting the offer contained in the Sale Notice. If GM
does not give an Acceptance Notice within the Acceptance Period the rights of GM
to purchase the Shares shall cease and the Founder may sell the Shares, in
accordance with this section 2 and free of GM's right of first refusal, to the
Offeror at the price and upon the terms and conditions specified in the Purchase
Offer.
2.4 Completion of Transfer
Any transfer to GM, pursuant to this section 2, shall be completed upon the date
selected by GM, provided that such date may be no later than 5 (five) Business
Days after the expiry of the Acceptance Period.
Any transfer of the Shares to the Offeror in accordance with this section 2 must
be completed upon the terms of the Purchase Offer failing which the provisions
of this section 2 shall again apply to any proposed transfer of the Shares.
2.5 Rights of the Founder
For greater certainty, GM acknowledges that nothing in this Agreement is
intended to prohibit the Founder from making ordinary market sales of Shares
using the facilities of the Nasdaq National Market or the Toronto Stock Exchange
in accordance with applicable securities laws.
ARTICLE 3
GENERAL
3.1 Termination
This Agreement shall terminate upon termination of the Corporate Alliance
Agreement entered into between GM and the Corporation on the date hereof.
3.2 Public Notices
All public notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be jointly planned and
co-ordinated by the Corporation and GM and no Party shall act unilaterally in
this regard without the prior approval of the other Parties, such approval not
to be unreasonably withheld, unless such disclosure shall be required to meet
timely disclosure obligations of any Party under applicable securities laws and
stock exchange rules in circumstances where prior to consultation with the other
Parties is not practicable.
3.3 Notices
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
The Founder
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Boyd Taylor
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
3.4 Amendment
No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any Party,
shall be binding unless executed in writing by the Party to be bound thereby.
3.5 Assignment
Neither this Agreement nor any rights or obligations under this Agreement shall
be assignable by any Party without the prior written consent of each of the
other Parties. Subject thereto, this Agreement shall enure to the benefit of and
be binding upon the Parties and their respective successors (including any
successor by reason of amalgamation of any Party) and permitted assigns.
3.6 Further Assurances
The Parties shall with reasonable diligence do all such things and provide all
such reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each Party shall provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out its
provisions.
3.7 Execution and Delivery
This Agreement may be executed by the Parties in counterparts and may be
executed and delivered by facsimile and all such counterparts and facsimiles
shall together constitute one and the same agreement.
IN WITNESS OF WHICH the parties have duly executed this Agreement.
SIGNED, SEALED & DELIVERED
In the presence of:
Jonathan Lundy Pierre Rivard
--------------- --------------
Witness
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
---------------------------------
Name: Lawrence D. Burns
Title: Vice President, Research
& Development and Planning
EX-1
3
hydrogenicsexh1.txt
SHARE SUBSCRIPTION AGREEMENT
Exhibit 1 Execution Copy
HYDROGENICS CORPORATION
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
SHARE SUBSCRIPTION AGREEMENT
October 16, 2001
------------------------------------------------------------------------------
TABLE OF CONTENTS
(continued)
Page
ARTICLE 1
INTERPRETATION.........................................................1
1.1 Defined Terms....................................................1
1.2 Gender and Number................................................3
1.3 Headings, etc....................................................3
1.4 Severability.....................................................3
1.5 Entire Agreement.................................................3
1.6 Amendments.......................................................4
1.7 Inclusion........................................................4
1.8 Accounting Terms.................................................4
1.9 Incorporation of Schedules.......................................4
ARTICLE 2
subscription...........................................................4
2.1 Subscription.....................................................4
2.2 Form of the Warrants.............................................4
2.3 Registration Rights..............................................4
2.4 Receipt of the Securities........................................5
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF THE
CORPORATION............................................................5
3.1 Representations and Warranties of the Corporation................5
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANT OF GM.........................7
4.1 Representations and Warranties of GM.............................7
ARTICLE 5
CLOSING CONDITIONS.....................................................9
5.1 Conditions of Closing in Favour of the Corporation...............9
5.2 Conditions of Closing in Favour of GM............................9
ARTICLE 6
INDEMNITY.............................................................10
6.1 Indemnification.................................................10
ARTICLE 7
MISCELLANEOUS.........................................................11
7.1 Notices.........................................................11
7.2 Time of the Essence.............................................12
7.3 Brokers.........................................................12
7.4 Third Party Beneficiaries.......................................12
7.5 Enurement.......................................................12
7.6 Waiver..........................................................12
7.7 Governing Law...................................................12
7.8 Counterparts....................................................12
- 2 -
THIS AGREEMENT is made October 16, 2001
BETWEEN:
HYDROGENICS CORPORATION, a corporation governed by
the laws of Canada,
(the "Corporation")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by
the laws of the State of Delaware,
("GM")
RECITALS
A. The Corporation and GM have entered into a Corporate Alliance Agreement,
Master Intellectual Property Agreement and Governance Agreement all on the
date hereof in connection with the creation of a long term strategic
alliance relationship between the Corporation and GM.
B. In connection with the creation of the strategic alliance relationship,
the Corporation has agreed to issue to GM and GM has agreed to subscribe
from the Corporation 11,364,006 common shares in the capital of the
Corporation and warrants to acquire an additional 2,470,436 common shares.
THEREFORE, in consideration of the premises and the mutual agreements contained
in this Agreement and other valuable consideration (the receipt and adequacy of
which is hereby acknowledged), the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Defined Terms.
As used in this Agreement including the recitals hereto, the following terms
have the following meanings:
"Agreement" means this subscription agreement and all schedules and
instruments in amendment or confirmation of it; "hereof", "hereto" and
"hereunder" and similar expressions mean and refer to this Agreement and
not to any particular Article, Section, Subsection or other subdivision;
"Article", "Section", "Subsection" or other subdivision of this Agreement
followed by a number means and refers to the specified Article, Section,
Subsection or other subdivision of this Agreement.
"Business Day" means any day other than Saturday, Sunday or a day on which
chartered banks are closed for business in Toronto, Ontario or New York,
New York.
"Closing" means the closing of all of the transactions contemplated by
this Agreement, the Corporate Alliance Agreement, the Master Intellectual
Property Agreement and the Corporate Governance Agreement.
"Closing Date" means on or about October 16, 2001.
"Competition Act Approval" means:
(a) the issuance of an advance ruling certificate ("ARC") pursuant
to section 102 of the Competition Act (Canada) (the "Competition
Act") by the Commissioner of Competition appointed under the
Competition Act (the "Commissioner") to the effect that he is
satisfied that he would not have sufficient grounds upon which to
apply to the Competition Tribunal for an order under section 92
of the Competition Act with respect to the transactions
contemplated by this Agreement; or
(b) the waiver by the Commissioner under section 113(c) of the
Competition Act of the obligation to notify the Commissioner
because substantially similar information was previously supplied
in relation to a request for an ARC, or that the waiting period
under section 123 of the Competition Act has expired, and the
Purchaser shall have been advised in writing by the Commissioner
that the Commissioner has determined not to make an application
for an order under section 92 of the Competition Act in respect
of the transactions contemplated by this Agreement and that any
terms and conditions attached to any such advice shall be
acceptable to the Subscriber and the Corporation.
"Financial Statements" means the audited balance sheet of the Corporation
for the fiscal year ending December 31, 2000 and the accompanying
statements of income, retained earnings and changes in financial position
for the year then ended and all notes thereto as reported upon by
PricewaterhouseCoopers LLP.
"GAAP" means, at any time, accounting principles generally accepted in
Canada as recommended in the Handbook of the Canadian Institute of
Chartered Accountants at the relevant time applied on a consistent basis
(except for changes made with the prior written consent of GM and approved
by the Corporation's independent auditors in accordance with promulgations
of the Canadian Institute of Chartered Accountants).
"Governmental Entity" means any (i) multinational, federal, provincial,
state, municipal, local or other government, governmental or public
department, central bank, court, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) any subdivision or authority of
any of the foregoing, or (iii) any quasi-governmental or private body
exercising any regulatory, expropriation or taxing authority under or for
the account of any of the above.
"Indemnified Party" has the meaning specified in Section 6.1(a).
"Indemnifying Party" has the meaning specified in Section 6.1(a).
"Losses" has the meaning specified in Section 6.1(a).
"Material Adverse Effect" in respect of the Corporation shall mean any
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects or properties of the Corporation whether or
not arising from transactions in the ordinary course of business.
"Parties" means GM, the Corporation and "Party" means any one of them.
"Person" means a natural person, partnership, corporation, joint stock
company, trust, unincorporated association, joint venture or other entity
or Governmental Entity, and pronouns have a similarly extended meaning.
"SEC" means the United States Securities and Exchange Commission.
"Securities" has the meaning specified in Section 2.1.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Shares" means the common shares in the capital of the Corporation.
"Subscription Shares" has the meaning specified in Section 2.1.
"Subscription Warrants" has the meaning specified in Section 2.1.
1.2 Gender and Number.
Any reference in this Agreement to gender includes all genders and words
importing the singular number only shall include the plural and vice versa.
1.3 Headings, etc.
The provision of a Table of Contents, the division of this Agreement into
Articles and Sections and the insertion of headings are for convenient reference
only and are not to affect is interpretation.
1.4 Severability.
If any provision of this Agreement shall be determined by an arbitrator or any
court of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be severed from this Agreement and the remaining provisions
shall continue in full force and effect.
1.5 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties in connection with the subject matter of
this Agreement. Except as set forth in the Corporate Alliance Agreement, there
are no representations, warranties, conditions or other agreements, express or
implied, statutory or otherwise, between the Parties in connection with the
subject matter of this Agreement, except as specifically set forth herein and
therein and neither GM nor the Corporation have relied or are relying on any
other information, discussion or understanding in entering into and completing
the transactions contemplated in this Agreement. If there is any conflict or
inconsistency between the provisions of this Agreement and the provisions of the
Corporate Alliance Agreement, the provisions of this Agreement shall govern.
1.6 Amendments.
This Agreement may only be amended, supplemented or otherwise modified by
written agreement signed by the Corporation and GM.
1.7 Inclusion.
Where the word "including" or "includes" is used in this Agreement it means
"including (or includes) without limitation".
1.8 Accounting Terms.
All accounting terms not specifically defined in this Agreement shall be
interpreted in accordance with GAAP.
1.9 Incorporation of Schedules.
The schedules attached to this Agreement shall, for all purposes of this
Agreement, form an integral part of it:
Schedule A - Form of Warrants
Schedule B - Escrow Agreement
Schedule C - Registration Rights Agreement
ARTICLE 2
SUBSCRIPTION
2.1 Subscription.
Subject to the terms and conditions hereof, the Corporation hereby agrees to
issue to GM and GM agrees to subscribe from the Corporation for 11,364,006
Shares (the "Subscription Shares") and warrants (the "Subscription Warrants") to
acquire an additional 2,470,436 Shares. The Subscription Shares and the
Subscription Warrants shall be referred to collectively herein as the
"Securities".
2.2 Form of the Warrants.
The Subscription Warrants shall be substantially in the form attached hereto as
Schedule A and shall be issued to GM subject to escrow substantially on the
terms of the escrow agreement attached hereto as Schedule B.
2.3 Registration Rights.
GM shall receive registration rights from the Corporation substantially on the
terms of the registration rights agreement attached hereto as Schedule C.
2.4 Receipt of the Securities.
GM hereby acknowledges receipt of the Securities.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF THE CORPORATION
3.1 Representations and Warranties of the Corporation.
The Corporation represents and warrants as follows to GM and acknowledges and
confirms that GM is relying on such representations and warranties in connection
with the subscription by GM for the Securities:
(a) Existence, Good Standing and Corporate Power. The Corporation
is validly existing and in good standing in its jurisdiction of
incorporation and has all corporate power required to conduct its
business as now conducted.
(b) Capitalization Etc.
(i) The authorized capital stock of the Corporation consists of
an unlimited number of Shares and an unlimited number of
preference shares, issuable in series. As of August 21,
2001, there were 35,574,280 Shares and no preference shares
issued and outstanding. All such issued and outstanding
Shares of the Corporation are validly issued, fully paid,
non-assessable and free of pre-emptive rights. Except for
6,377,434 Shares reserved for the exercise of options under
the Corporation's Stock Option Plan and the Subscription
Warrants, there are no existing options, warrants, calls,
subscriptions, or other rights or other agreements or
commitments which obligate the Corporation or any of its
subsidiaries to issue, transfer or sell any shares of
capital stock of the Corporation.
(ii) The issuance and delivery by the Corporation of the Securities
in connection with the transactions contemplated by this
Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Corporation. The
Securities to be issued in connection with the transactions
contemplated by this Agreement will, when issued in accordance
with the terms of this Agreement, be validly issued, fully
paid and non-assessable.
(c) Financial Statements. The Financial Statements present fairly, in
all material respects, the financial position of the Corporation and
any of its subsidiaries as of the date thereof and the results of
operations and cash flows of the Corporation and any of its
subsidiaries for the periods covered thereby. The Financial
Statements have been prepared in accordance with GAAP.
(d) Public Filings. The Corporation's Annual Report on Form 20-F for the
fiscal year ended December 31, 2000 as filed with the Ontario
Securities Commission and the SEC and the Quarterly Financial
Results for the three-month periods ending March 31, 2001 and
June 30, 2001, as filed with the Ontario Securities Commission
and the SEC, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in
light of the circumstances in which they were made, not
misleading, at the dates and for the periods as of which the
information contained therein was presented.
(e) No Material Adverse Effect. Between June 30, 2001 and the date of
this Agreement, the Corporation has not suffered any adverse change
with respect to its business, results of operations or financial
condition which has had or is likely to have a Material Adverse
Effect on the Corporation and any of its subsidiaries, taken as a
whole.
(f) Compliance with Legal Requirements. The Corporation is in compliance
with applicable legal requirements, except where the failure to
comply with such legal requirements has not had and will not have
a Material Adverse Effect on the Corporation. The Corporation has
not received at any time, any notice or other written
communication from any Governmental Entity regarding any actual
or possible violation of, or failure to comply with, any legal
requirement.
(g) Authority; Binding Nature of Agreement. The Corporation has the
corporate right, power and authority to enter into and to perform
its obligations under this Agreement; and the execution, delivery
and performance by the Corporation of this Agreement has been
duly authorized by all necessary action on the part of the
Corporation and the board of directors of the Corporation. This
Agreement constitutes the legal, valid and binding obligation of
the Corporation enforceable against the Corporation in accordance
with its terms, subject to (a) laws of general application
relating to bankruptcy, insolvency and the relief of debtors and
(b) rules of law governing specific performance, injunctive
relief and other equitable remedies.
(h) Non-Contravention: Consents. Neither (y) the execution, delivery or
performance of this Agreement, nor (z) the consummation of any of
the transactions contemplated hereby, will directly or indirectly
(with or without notice or lapse of time):
(i) contravene, conflict with or result in a violation of (A) any
of the provisions of the charter documents of the Corporation,
(B) any resolution adopted by the shareholders, board of
directors or any committee of the board of directors of the
Corporation; or (C) any agreement or contract to which the
Corporation is a party or by which the Corporation is bound;
(ii) contravene, conflict with or result in a violation of, any
legal requirement or any order, writ, injunction or decree to
which the Corporation or any of its material assets is
subject;
(iii) contravene, conflict with or result in a violation of any of
the terms or requirements of any material permit issued by a
Governmental Entity that is held by the Corporation or that
otherwise relates to the business of the Corporation or to any
material assets owned or used by the Corporation; or
(iv) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any
contract to which the Corporation is a party or by which any
material asset of the Corporation is bound.
(i) Legal Proceedings.
(i) There is no pending legal proceeding and (to the knowledge of
the Corporation) no Person has overtly threatened to commence
any legal proceeding: (i) that involves the Corporation or any
assets owned or used by the Corporation and that is reasonably
likely to have a Material Adverse Effect on the Corporation;
or (ii) that challenges any of the transactions contemplated
by this Agreement.
(ii) There is no order, writ, injunction, judgment or decree to
which the Corporation, or any material assets owned or used by
the Corporation, is subject that would prohibit the
Corporation from entering into this Agreement or consummating
the transactions contemplated hereby.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANT
OF GM
4.1 Representations and Warranties of GM.
GM represents and warrants as follows to the Corporation and acknowledges and
confirms that the Corporation is relying upon such representations and
warranties in connection with the issuance by the Corporation of the Securities:
(a) Investment. GM is acquiring the Securities for GM's own account for
investment only and not with a view towards, or the resale in
connection with, the public sale or distribution thereof, (ii) GM
is not a resident of Canada; and (iii) GM does not intend to
sell, transfer or otherwise dispose of the Securities to any
Person (other than by operation of law or as otherwise permitted
under the terms of this Agreement) during the one year period
immediately following the Closing Date;
(b) Exemptions. GM understands that the Securities are being offered and
issued to GM in reliance on specific exemptions from the
registration requirements of United States federal and state
securities laws and that the Corporation is relying in part upon
the truth and accuracy of, and GM's compliance with, the
representations, warranties, agreements, acknowledgements and
understandings set forth herein in order to determine the
availability of such exemptions and the eligibility of GM to
acquire the Securities;
(c) Due Diligence. GM has been furnished with all materials relating to
the business, finances and operations of the Corporation which have
been requested by GM. GM has been afforded the opportunity to ask
questions of the Corporation. GM has sought such accounting, legal
and tax advice as GM has considered necessary to make an informed
investment decision with respect to GM's acquisition of the
Securities;
(d) Government Approval.GM understands that no U.S. or Canadian federal,
state or provincial agency or any other Governmental Entity has
passed on or made any recommendation or endorsement of the
Securities or the fairness or suitability of GM's investment in
the Securities nor have such authorities passed upon or endorsed
the merits of the offering of the Securities;
(e) Accredited Investor. GM is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
(f) Resale Restrictions. GM understands that:
(i) the Securities it is acquiring are characterized as
"restricted securities" under the U.S. federal securities laws
as it is being acquired from the Corporation in a transaction
not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without
registration under the Securities Act only in certain limited
circumstances;
(ii) in the absence of a registration or an effective exemption
from registration under the Securities Act, the Securities
must be held indefinitely;
(iii) the offer and sale of the Securities have not been registered
under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or
506 promulgated under the Securities Act, and may not be
offered for sale, sold, pledged or hypothecated unless,
(A) subsequently registered thereunder, or
(B) GM shall have delivered to the Corporation an opinion of
counsel, in a generally acceptable form, to the effect
that the Securities may be sold, offered, pledged or
hypothecated pursuant to an exemption from such
registration;
(iv) except pursuant to the registration rights agreement referred
to in Section 2.3 of this Agreement or as the Parties may
otherwise expressly agree the Corporation is under no
obligation to register the Securities, under the Securities
Act or any state securities laws or to comply with the terms
and conditions of any exemption thereunder or to qualify the
resale of the Securities, by prospectus in any province of
Canada; and
(v) the Securities may not be offered for sale, sold, pledged,
hypothecated, assigned or transferred in Canada except in
compliance with applicable Canadian securities laws;
(g) U.S. Legend. GM understands that the certificates or other
instruments representing the Securities shall bear a restrictive
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT") OR ANY APPLICABLE STATE BLUE SKY LAWS. THEY MAY NOT BE SOLD
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER THE 1933 ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. ANY SUCH SALE,
OFFER, PLEDGE OR HYPOTHECATION MAY ALSO BE SUBJECT TO APPLICABLE
STATE SECURITIES LAW.
(h) Canadian Legend. In addition, the certificates or other
instruments representing the Securities shall bear an additional
restrictive legend in substantially the following form:
UNLESS PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION,
THE HOLDER OF THE SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE
[insert the date that is twelve months and a day after the
distribution date].
ARTICLE 5
CLOSING CONDITIONS
5.1 Conditions of Closing in Favour of the Corporation.
The obligation of the Corporation to issue the Securities at the Closing will be
subject to: (i) the requirement that GM has executed and delivered this
Agreement, the Corporate Alliance Agreement, the Master Intellectual Property
Agreement and the Governance Agreement, and any required forms necessary to
comply with applicable securities legislation, policies and rulings;
5.2 Conditions of Closing in Favour of GM.
GM's obligations to Subscribe for the Securities at the Closing are subject to
the satisfaction by the Corporation or waiver by GM, at or prior to the Closing
Date, of the following conditions:
(a) Representations and Warranties True; Performance of Obligations.
The representations and warranties made by the Corporation in
Section 3.1 hereof shall be true and correct in all respects, GM
shall have received a certificate of the Chief Executive Officer of
the Corporation, confirming the truth and correctness of the
representations and warranties of the Corporation, and the
Corporation shall have performed all obligations and conditions
herein in all material respects required to be performed or
observed by it on or prior to the Closing.
(b) Legal Investment. On the Closing Date, the issuance of the
Securities contemplated hereby shall be legally permitted by all
laws and regulations to which such sale and issuance are subject.
(c) Consents, Permits and Waivers. The Corporation shall have obtained
any and all consents, permits and waivers necessary or appropriate
for consummation of the transactions contemplated by this Agreement
including Competition Act Approval and approvals from The Toronto
Stock Exchange and the Nasdaq National Market.
(d) Corporate Documents. The Corporation shall have delivered to GM or
its counsel, copies of all corporate documents of the Corporation as
GM shall reasonably request.
(e) Reservation of Shares. The underlying shares issuable upon exercise
of the Subscription Warrants shall have been duly authorized and
reserved for issuance upon such conversion.
(f) Legal Opinion. GM shall have received from legal counsel to the
Corporation an opinion addressed to GM, dated as of the Closing
Date, in a form acceptable to GM's counsel.
(g) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the closing hereby
and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to GM, and GM
shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
ARTICLE 6
INIDEMNITY
6.1 Indemnification.
(a) Indemnification. Each Party (the "Indemnifying Party") shall
indemnify and hold the other Party (the "Indemnified Party")
harmless from and against any claims, demands, actions, causes
of action, judgements, damages, losses (which shall include any
diminution in value), liabilities, costs or expenses (including,
without limitation, interest, penalties and reasonable attorneys'
and experts' fees and disbursements) (collectively, the "Losses")
which may be made against the Indemnified Party, or which the
Indemnified Party may suffer or incur as a result of, arising out
of or relating to:
(i) any violation, contravention or breach of any covenant,
agreement or obligation of the Indemnifying Party under or
pursuant to this Agreement; or
(ii) any incorrectness in, or breach of, any representation or
warranty made by the Indemnifying Party in Article 3 of this
Agreement.
(b) Notification. Promptly upon obtaining knowledge thereof, the
Indemnified Party shall notify the Indemnifying Party of any cause
which the Indemnified Party has determined has given or could give
rise to indemnification under this Agreement. The omission so to
notify the Indemnifying Party shall not relieve the Indemnifying
Party from any duty to indemnify and hold harmless which otherwise
might exist with respect to such cause.
ARTICLE 7
MISCELLANEOUS
7.1 Notices.
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
The Corporation
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Pierre Rivard, President
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
7.2 Time of the Essence.
Time shall be of the essence of this Agreement.
7.3 Brokers.
It is understood and agreed that no broker, agent or other intermediary acted
for the Corporation in connection with the sale of the Subscription Shares and
Subscription Warrants and the Corporation shall indemnify and save harmless GM
from and against any claims whatsoever for any commission or other remuneration
payable or alleged to be payable to any broker, agent or other intermediary who
purports to act or have acted for the Corporation.
7.4 Third Party Beneficiaries.
Each Party hereto intends that this Agreement shall not benefit or create any
right or cause of action in or on behalf of any Person, other than the Parties
hereto, and no Person, other than the Parties hereto, shall be entitled to rely
on the provisions hereof in any action, suit, proceeding, hearing or other
forum.
7.5 Enurement.
This Agreement shall enure to the benefit of and be binding upon the Parties,
their successors and any permitted assigns.
7.6 Waiver.
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar); nor shall
such waiver be binding unless executed in writing by the Party to be bound by
the waiver.
7.7 Governing Law.
This Agreement shall be governed by and interpreted and enforced in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
7.8 Counterparts.
This Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their respective duly authorized officers.
HYDROGENICS CORPORATION
By: Pierre Rivard
---------------------------------
Name: Pierre Rivard
Title: President and CEO
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
---------------------------------
Name: Lawrence D. Burns
Title: Vice President, Research
& Development and Planning
EX-2
4
hydrogenicsexh2.txt
GOVERNANCE AGREEMENT
Exhibit 2 Execution Copy
HYDROGENICS CORPORATION
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
GOVERNANCE AGREEMENT
October 16, 2001
------------------------------------------------------------------------------
TABLE OF CONTENTS
(continued)
Page
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION...........................1
1.1 Definitions......................................................1
1.2 Certain Rules of Interpretation..................................2
1.3 Entire Agreement.................................................3
ARTICLE 2
MANAGEMENT OF THE CORPORATION..........................................3
2.1 Board of Directors...............................................3
2.2 Observer.........................................................4
ARTICLE 3
ACQUISITIONS OF SHARES.................................................4
3.1 Restriction on Acquisitions......................................4
3.2 Exception........................................................4
3.3 Permitted Acquisitions...........................................5
ARTICLE 4
DISPOSITIONS OF SHARES.................................................5
4.1 Restriction on Dispositions......................................5
4.2 Permitted Transfers..............................................5
ARTICLE 5
PRE-EMPTIVE RIGHTS.....................................................6
5.1 Future Equity Financing..........................................6
ARTICLE 6
GENERAL................................................................6
6.1 Termination......................................................6
6.2 Public Notices...................................................6
6.3 Notices..........................................................6
6.4 Amendment........................................................7
6.5 Assignment.......................................................7
6.6 Further Assurances...............................................8
6.7 Execution and Delivery...........................................8
THIS AGREEMENT is made October 16, 2001
BETWEEN:
HYDROGENICS CORPORATION, a corporation governed by the laws of
Canada,
(the "Corporation")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by the laws
of the State of Delaware,
("GM")
RECITALS:
A. GM beneficially owns or exercises control or direction over common
shares in the capital of the Corporation; and
B. The Parties wish to enter into an agreement addressing certain matters
relating to the business and affairs of the Corporation.
THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 Definitions
Whenever used in this Agreement, the following words and terms have the meanings
set out below:
"Affiliate" means, with respect to any specified Party, any company that
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Party specified. For
purposes of this definition, "control" including with correlative
meanings, the terms "controlled by" and "under common control with" means
ownership directly or indirectly of more than fifty percent (50%) of the
equity capital having the right to vote for election of directors (or in
the case of an entity other than a corporation, the equivalent management
authority); provided that a pension plan, profit sharing plan, or advisor
to such a plan that does not buy, sell or vote securities at the order,
direction or recommendation of GM shall not be deemed to be an "Affiliate"
of GM.
"Agreement" means this agreement, including all schedules, and all
amendments or restatements as permitted, and references to "Article" or
"Section" mean the specified Article or Section of this Agreement.
"Business Day" means any day, other than a Saturday or Sunday, on which
the Corporation's principal bank is open for commercial banking business
in both Toronto, Ontario and New York, New York during normal banking
hours.
"Convertible Securities" means any rights, warrants, options or other
securities convertible or exchangeable into Shares.
"Parties" means, collectively, GM and the Corporation and "Party" means
any one of them.
"Person" means any individual, sole proprietorship, partnership, firm,
entity, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, body corporate, government, government
regulatory authority, governmental department, agency, commission, board,
tribunal, dispute settlement panel or body, bureau, court, and where the
context requires any of the foregoing when they are acting as trustee,
executor, administrator or other legal representative.
"Shares" means common shares in the capital of the Corporation.
1.2 Certain Rules of Interpretation
In this Agreement:
(a) Governing Law - This Agreement is a contract made under and shall be
governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario.
(b) Headings - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
(c) Including - Where the word "including" or "includes" is used in this
Agreement, it means "including (or includes) without limitation".
(d) No Strict Construction- The language used in this Agreement is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any Party.
(e) Number and Gender - Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(f) Severability - If, in any jurisdiction, any provision of this
Agreement or its application to any Party or circumstance is
restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent
of such restriction, prohibition or unenforceability without
invalidating the remaining provisions of this Agreement and without
affecting the validity or enforceability of such provision in
any other jurisdiction or without affecting its application to
other Parties or circumstances.
(g) Statutory References - A reference to a statute includes all
regulations made pursuant to such statute and, unless otherwise
specified, the provisions of any statute or regulation which amends,
supplements or supersedes any such statute or any such regulation.
(h) Time - Time is of the essence in the performance of the Parties'
respective obligations.
(i) Time Periods - Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done shall
be calculated by excluding the day on which the period commences and
including the day on which the period ends and by extending the
period to the next Business Day following if the last day of the
period is not a Business Day.
1.3 Entire Agreement
This Agreement and the agreements and other documents required to be delivered
pursuant to this Agreement, constitute the entire agreement between the Parties
and set out all the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to the
subject matter of this Agreement and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written. There are
no covenants, promises, warranties, representations, conditions, understandings
or other agreements, oral or written, express, implied or collateral between the
Parties in connection with the subject matter of this Agreement except as
specifically set forth in this Agreement and any document required to be
delivered pursuant to this Agreement. No Party will have a remedy in respect of
any untrue statement made to such Party upon which such Party relied in entering
this Agreement.
ARTICLE 2
MANAGEMENT OF THE CORPORATION
2.1 Board of Directors
(a) The Corporation shall no later than the effective date of this
Agreement establish the size of the Corporation's board of directors
at eight (8) directors.
(b) The Corporation shall, no later than the effective date of
this Agreement, cause one individual nominated by GM to be appointed
to the Corporation's board of directors to sit as a voting member
of the board. Thereafter during the term of this Agreement, the
Corporation shall name one individual nominated by GM to its
proposed slate of directors to be presented to the Corporation's
shareholders for election at the appropriate meeting of
shareholders, provided that if the Corporation adopts staggered
terms for its board, GM's nominee director shall be appointed
initially to the class with the longest term before its election.
(c) GM shall be entitled to remove and replace its nominee from time to
time and any vacancy occurring on the board of directors of the
Corporation by reason of the death, disqualification, inability to
act, resignation or removal of the director nominated by GM shall be
filled only by a further nominee of GM.
2.2 Observer
The Corporation shall, no later than the effective date of this Agreement, cause
one individual nominated by GM to be appointed as an observer to the
Corporation's board of directors. GM shall be entitled to remove and replace its
observer from time to time. The observer shall be entitled to the following:
(a) to attend all meetings of the board, whether held in person or by
telephone, and to receive copies of all information made available
to members of the board as and when provided to them.
(b) to receive notice of all meetings of the board, as and when
provided to members of the board.
(c) to not be excluded from any part of any proceedings of the board
except, and only to the extent, necessary for the board and/or the
Corporation to comply with any applicable legal or contractual
requirements.
(d) to receive and review drafts of all resolutions proposed for
signature by the members of the board (in lieu of a meeting) before
such resolutions are so signed.
ARTICLE 3
ACQUISITIONS OF SHARES
3.1 Restriction on Acquisitions
Subject to Sections 3.2 and 3.3, GM agrees that for a period of four years from
the date of this Agreement, neither it nor any of its Affiliates will directly,
indirectly, or jointly or in concert with any other person, purchase, offer or
agree to purchase any voting or equity securities of the Corporation or
purchase, offer or agree to purchase all or substantially all of the assets of
the Corporation or enter, offer or agree to enter into any acquisition or other
business combination transaction relating to the Corporation or propose any of
the foregoing, or solicit proxies from shareholders of the Corporation, or
otherwise attempt to influence the conduct of the shareholders of the
Corporation, unless such purchase, transaction, offer, agreement, proposal or
solicitation shall have been previously approved by the board of directors of
the Corporation.
3.2 Exception
Nothing in Section 3.1 shall be construed to require GM to dispose of Shares
beneficially owned by GM in the event that the Corporation purchases for
cancellation, effects an issuer bid or otherwise acquires outstanding Shares.
3.3 Permitted Acquisitions
Notwithstanding the restrictions set forth in Section 3.1, GM shall be entitled
to acquire Shares at any time:
(a) pursuant to the exercise of Convertible Securities beneficially
owned or controlled by GM or its Affiliates, as the case may be,
which were received by GM or its Affiliates, pursuant to a grant or
issuance by the Corporation from treasury on or subsequent to the
date of this Agreement;
(b) as contemplated by Article 5 of this Agreement; or
(c) from any of Pierre Rivard, Boyd Taylor or Joe Cargnelli pursuant to
the terms of the Right of First Refusal entered into with each of
them on or about the date of this Agreement.
ARTICLE 4
DISPOSITIONS OF SHARES
4.1 Restriction on Dispositions
GM will not, without the prior written consent of the Corporation, offer, sell,
contract to sell, pledge or otherwise dispose of, (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by GM or any Affiliate of GM or any person in
privity with GM or any Affiliate of GM), directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations of the United
States Securities and Exchange Commission promulgated thereunder with respect
to, any shares of capital stock of the Company or any securities convertible
into, or exercisable or exchangeable for such capital stock, or publicly
announce an intention to effect any such transaction, for the following periods:
(a) three years from the date of this Agreement in respect of
11,364,006 Shares;
(b) four years from the date of this Agreement in respect of
7,576,004 Shares; and
(c) five years from the date of this Agreement in respect of
3,788,002 Shares.
4.2 Permitted Transfers
GM shall be permitted to transfer all or any portion of the Shares owned by GM
to any direct or indirect subsidiary of GM upon ten days' prior written notice
to the Corporation provided that such subsidiary agrees to be subject to the
terms of this Agreement.
ARTICLE 5
PRE-EMPTIVE RIGHTS
5.1 Future Equity Financing
If the Corporation intends to issue and sell for cash equity securities
(including securities convertible into equity securities), the Corporation shall
provide written notice to GM specifying the terms and conditions of the proposed
equity issuance including the amount of financing to be raised, the type of
security to be issued, the price range per security to be issued and the target
completion date. GM shall have the irrevocable right (the "Pre-Emptive Right"),
exercisable by written notice given to the Corporation within 10 days after
receiving the above notice from the Corporation, to participate in the equity
financing on a pro rata basis based on the number of Shares on a fully diluted
basis held by GM on the date of such notice on the terms and conditions set
forth by the Corporation. For greater certainty, the Pre-Emptive Right shall not
apply in respect of: (a) the issue of any options or shares of the Corporation
pursuant to the Corporation's Stock Option Plan; (b) Shares issued by the
Corporation as a stock dividend; or (c) Shares issued by the Corporation in
connection with an acquisition joint venture or similar transaction.
ARTICLE 6
GENERAL
6.1 Termination
This Agreement shall terminate upon termination of the Corporate Alliance
Agreement entered into between GM and the Corporation on the date hereof.
6.2 Public Notices
All public notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be jointly planned and
co-ordinated by the Corporation and GM and no Party shall act unilaterally in
this regard without the prior approval of the other Parties, such approval not
to be unreasonably withheld, unless such disclosure shall be required to meet
timely disclosure obligations of any Party under applicable securities laws and
stock exchange rules in circumstances where prior to consultation with the other
Parties is not practicable.
6.3 Notices
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
The Corporation
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Pierre Rivard, President
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
6.4 Amendment
No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any Party,
shall be binding unless executed in writing by the Party to be bound thereby.
6.5 Assignment
Neither this Agreement nor any rights or obligations under this Agreement shall
be assignable by any Party without the prior written consent of each of the
other Parties. Subject thereto, this Agreement shall enure to the benefit of and
be binding upon the Parties and their respective successors (including any
successor by reason of amalgamation of any Party) and permitted assigns.
6.6 Further Assurances
The Parties shall with reasonable diligence do all such things and provide all
such reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each Party shall provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out its
provisions.
6.7 Execution and Delivery
This Agreement may be executed by the Parties in counterparts and may be
executed and delivered by facsimile and all such counterparts and facsimiles
shall together constitute one and the same agreement.
IN WITNESS OF WHICH the parties have duly executed this Agreement.
HYDROGENICS CORPORATION
By: Pierre Rivard
---------------------------------
Name: Pierre Rivard
Title: President and CEO
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
---------------------------------
Name: Lawrence D. Burns
Title: Vice President, Research &
Development and Planning
EX-3
5
hydrogenicsexh3.txt
REGISTRATION RIGHT AGREEMENT
Exhibit 3 Execution Copy
HYDROGENICS CORPORATION
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
October 16, 2001
------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS............................................................1
1.1 Definitions......................................................1
ARTICLE 2
REGISTRATION RIGHTS....................................................3
2.1 Request for Registration.........................................3
2.2 Corporation Registration.........................................4
2.3 Obligations of the Corporation...................................4
2.4 Furnish Information..............................................6
2.5 Expenses of Demand Registration..................................6
2.6 Expenses of Corporation Registration.............................6
2.7 Underwriting Requirements........................................6
2.8 Delay of Registration............................................7
2.9 Indemnification..................................................7
2.10 Reports Under Securities Exchange Act of 1934....................9
2.11 Form S-3, Form F-3 or Form F-10 Registration....................10
2.12 Assignment of Registration Rights...............................11
2.13 "Market Stand-Off" Agreement....................................11
2.14 Termination of Registration Rights..............................11
ARTICLE 3
MISCELLANEOUS.........................................................12
3.1 No Successors and Assigns.......................................12
3.2 Governing Law...................................................12
3.3 Counterparts....................................................12
3.4 Titles and Subtitles............................................12
3.5 Notices.........................................................12
3.6 Expenses........................................................13
3.7 Amendments and Waivers..........................................13
3.8 Severability....................................................13
3.9 Aggregation of Stock............................................14
3.10 Entire Agreement; Amendment; Waiver.............................14
THIS AGREEMENT is made as of October 16, 2001
BETWEEN:
HYDROGENICS CORPORATION, a corporation governed by the laws of
Canada,
(the "Corporation")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by the laws
of the State of Delaware,
("GM")
RECITALS:
A. Contemporaneously with the execution and delivery of this Agreement, the
Corporation and GM have entered into a subscription agreement pursuant to
which the Corporation has issued to GM 11,364,006 Common Shares (as
defined below) and warrants to acquire up to an additional 2,470,436
Common Shares.
B. The parties wish to ensure that the Common Shares issued to GM and the
underlying shares issued upon exercise of the warrants by GM are freely
tradable pursuant to applicable securities laws.
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is acknowledged and agreed to, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
(a) The term "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(b) The term "Act" means the Securities Act of 1933, as amended.
(c) The term "Business Day" means a day that is not a Saturday, Sunday
or a statutory or legal holiday in Toronto, Ontario or New York, New
York.
(d) The term "Common Shares" means the common shares in the capital
of the Corporation;
(e) The terms "Form S-1", "Form F-1", "Form S-4", "Form F-4", "Form S-8"
and "Form F-10" mean such respective forms under the Act, as in
effect on the date of this Agreement or any successor registration
forms to such forms under the Act subsequently adopted by the SEC;
(f) The terms "Form S-3", "Form F-3" and "Form F-10" means such form
under the Act as in effect on the date hereof or any registration
form under the Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference
to other documents filed by the Corporation with the SEC.
(g) The term "GM's Restriction on Disposition" means the restrictions on
disposition of the Shares set out in Section 4.1 of the shareholders
governance agreement entered into between the Corporation and GM on
or about the date of this Agreement.
(h) The terms "register", "registered," and "registration" refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration
statement or document.
(i) The term "Registrable Securities" means: (i) the Shares;
(ii) any Common Shares issued as a dividend or other distribution
with respect to, in exchange for, or in replacement of any of the
Shares; (iii) the Warrants; (iv) the Warrant Shares; and (v) any
Common Shares issued or issuable as a dividend or other
distribution with respect to, in exchange for or in replacement
of the Warrant Shares; provided, however, that notwithstanding
anything to the contrary contained herein, "Registrable
Securities" shall not at any time include any securities (A)
registered and sold pursuant to the Act, (B) sold to the public
pursuant to Rule 144 promulgated under the Act or (C) that become
or have become eligible for resale pursuant to SEC Rule 144(k) or
pursuant to Regulation S;
(j) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of Common Shares outstanding which
are, and the number of Common Shares issuable pursuant to then
exercisable or convertible securities which are, Registrable
Securities.
(k) The term "SEC" means the Securities and Exchange Commission.
(l) The term "Shares" means the 11,364,006 Common Shares issued to
GM by the Corporation at an issue price of US$2.89;
(m) The term "Warrants" means the warrants issued by the Corporation to
GM to acquire up to 2,470,436 Common Shares at an exercise price of
US$4.00; and
(n) The term "Warrant Shares" means the Common Shares issuable upon the
exercise of all or any portion of the Warrants.
ARTICLE 2
REGISTRATION RIGHTS
2.1 Request for Registration
(a) Subject to GM's Restrictions on Disposition, if the Corporation
shall receive at any time after October 16, 2004, a written
request from GM that the Corporation file a registration statement
under the Act covering the registration of at least five percent(5%)
of the Registrable Securities then outstanding (or a lesser
percent if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed US$15
million), then the Corporation shall use commercially reasonable
efforts to effect as soon as practicable the registration under
the Act of all Registrable Securities which GM requests to be
registered, subject to the limitations of Section 2.1.
(b) If GM intends to distribute the Registrable Securities covered by
its request by means of an underwriting, the underwriter will be
selected by GM and shall be reasonably acceptable to the
Corporation. GM shall (together with the Corporation as provided
in subsection 2.3(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this
Section 2.1, if the managing underwriter advises GM in writing
that marketing factors require a limitation of the number of
shares to be underwritten, then the number of shares of
Registrable Securities that may be included in the underwriting
shall be reduced to a number deemed satisfactory by such managing
underwriter.
(c) Notwithstanding the foregoing if (i) the Corporation has been
advised by legal counsel that such filing or effectiveness would
require disclosure of a material financing, acquisition or other
corporate transaction, and the Board of Directors of the
Corporation determines in good faith that such disclosure is not
in the best interests of the Corporation and its stockholders or
(ii) the Board of Directors determines in good faith that there
is a valid business purpose or reason for delaying filing or
effectiveness for such registration statement, the Corporation
shall have the right to defer taking action with respect to such
filing (or suspend the use by GM of such registration statement)
for a period of not more than sixty (60) days after receipt of
the request from GM; provided, however, that the Corporation may
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not utilize this right more than twice in any twelve-month period.
(d) In addition, the Corporation shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section
2.1:
(i) After the Corporation has effected three registrations
pursuant to this Section 2.1 and such registrations have been
declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior
to the Corporation's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after
the effective date of, a registration subject to Section 2.2
hereof; provided that the Corporation is actively employing in
good faith all commercially reasonable efforts to cause such
registration statement to become effective;
(iii) At the time of such request, the Corporation is currently
engaged in a self-tender or exchange offer and the filing of a
registration statement would cause a violation of the 1934 Act
or applicable Canadian securities laws; or
(iv) If GM proposes to dispose of shares of Registrable Securities
that may be immediately registered on Form S-3, Form F-3 or
Form F-10 pursuant to a request made pursuant to Section 2.11
below.
2.2 Corporation Registration
Subject to GM's Restrictions on Disposition, if (but without any obligation to
do so) the Corporation proposes to register (including for this purpose a
registration effected by the Corporation for shareholders other than GM) any of
its Common Shares or other securities under the Act in connection with the
public offering of such securities solely for cash (other than a registration
relating solely to the sale of securities to participants in a Corporation stock
plan, a registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities for sale to the public or a
registration in which the only Common Shares being registered are Common Shares
issuable upon conversion of debt securities which are also being registered or
with respect to any registration statement on Form S-4, Form F-4 or Form S-8),
the Corporation shall, at such time, promptly give GM written notice of such
registration. Upon the written request of GM given within twenty (20) days after
mailing of such notice by the Corporation in accordance with Section 2.4, the
Corporation shall, subject to the provisions of Section 2.7, cause to be
registered under the Act all of the Registrable Securities that GM has requested
to be registered. The Corporation is under no obligation to complete any
offering of its securities it proposes to make and will incur no liability to GM
for its failure to do so.
2.3 Obligations of the Corporation
Whenever required under this Article 2 to effect the registration of any
Registrable Securities, the Corporation shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its commercially reasonable
best efforts to cause such registration statement to become
effective, and, upon the request of GM, keep such registration
statement effective until the distribution contemplated in the
Registration Statement has been completed (but not for more than
one hundred twenty (120) days); provided, however, that in the
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case of any registration of Registrable Securities on Form S-3,
Form F-3 or Form F-10 which are intended to be offered on a
continuous or delayed basis, such 120-day period shall be
extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Act,
permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Act governing
the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment which (I) includes any
prospectus required by Section 10(a)(3) of the Act or (II)
reflects facts or events representing a material or fundamental
change in the information set forth in the registration
statement, the incorporation by reference of information required
to be included in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the 1934 Act in
the registration statement.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with
the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to GM such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as GM may reasonably request in order
to facilitate the disposition of Registrable Securities owned by it.
(d) Use its commercially reasonable best efforts to register and qualify
the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by GM; provided that the Corporation shall not
be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
If GM participates in such underwriting, it shall also enter into
and perform its obligations under such an agreement.
(f) Notify GM if it has Registrable Securities covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act or the happening
of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing, in which case GM shall not offer or sell Registrable
Securities until the Corporation has delivered copies of a
supplement or amendment to such prospectus to GM.
(g) Use its commercially reasonable best efforts to cause the securities
covered by such registration statement to be listed on the
securities exchange or quoted on the quotation system on which the
Common Shares are then listed or quoted.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the
effective date of such registration.
2.4 Furnish Information.
(a) It shall be a condition precedent to the obligations of the
Corporation to take any action pursuant to this Article 2 with
respect to the Registrable Securities of GM that GM shall furnish to
the Corporation such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of
GM's Registrable Securities.
(b) The Corporation shall have no obligation with respect to any
registration requested pursuant to Section 2.1 or Section 2.11
if, due to the operation of subsection 2.4(a), the number of
shares or the anticipated aggregate offering price of the
Registrable Securities to be included in the registration does
not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the
Corporation's obligation to initiate such registration as
specified in subsection 2.1(a) or subsection 2.11(a)(i),
whichever is applicable.
2.5 Expenses of Demand Registration
All expenses other than underwriting discounts and commissions incurred in
connection with registrations, filings or qualifications pursuant to Section
2.1, including (without limitation) all registration, filing and qualification
fees, printers' and accounting fees, fees and disbursements of counsel for the
Corporation shall be borne by the Corporation; provided, however, that the
Corporation shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2.1 if the registration request is
subsequently withdrawn at the request of GM (in which case GM shall bear such
expenses), unless GM agrees to forfeit its right to one demand registration
pursuant to Section 2.1; provided further, however, that if at the time of such
withdrawal, GM has learned of a material adverse change in the condition,
business, or prospects of the Corporation from that known to GM at the time of
its request and has withdrawn the request with reasonable promptness following
disclosure by the Corporation of such material adverse change, then GM shall not
be required to pay any of such expenses and shall retain its rights pursuant to
Section 2.1.
2.6 Expenses of Corporation Registration
The Corporation shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect to
the registrations pursuant to Section 2.2 for GM, including (without limitation)
all registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto but excluding underwriting discounts and
commissions relating to Registrable Securities.
2.7 Underwriting Requirements
In connection with any offering involving an underwriting of shares of the
Corporation's capital stock, the Corporation shall not be required under Section
2.2 to include any of GM's securities in such underwriting unless it accepts the
terms of the underwriting as agreed upon between the Corporation and the
underwriters selected by it (or by other persons entitled to select the
underwriters), and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by the
Corporation. If the total amount of securities, including Registrable
Securities, requested by shareholders to be included in such offering exceeds
the amount of securities sold other than by the Corporation that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Corporation shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling shareholders according to the total amount of securities
entitled to be included therein owned by each selling shareholder).
2.8 Delay of Registration
GM shall not have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this Article
2.
2.9 Indemnification
In the event any Registrable Securities are included in a registration statement
under this Article 2:
(a) To the extent permitted by law, the Corporation will indemnify and
hold harmless GM, any underwriter (as defined in the Act) for GM
and each person, if any, who controls GM or such underwriter within
the meaning of the Act or the 1934 Act, against any losses,
claims, damages, or liabilities (joint or several) to which they
may become subject under the Act or the 1934 Act insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration
statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements
thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make
the statements therein not misleading, or (iii) any violation or
alleged violation by the Corporation of the Act or the 1934 Act
or any rule or regulation promulgated under the Act or the 1934
Act; and the Corporation will pay to GM or each such underwriter
or controlling person any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this
subsection 2.9(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Corporation
(which consent shall not be unreasonably withheld), nor shall the
Corporation be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use
in connection with such registration by GM or any such
underwriter or controlling person.
(b) To the extent permitted by law, GM will indemnify and hold harmless
the Corporation, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who
controls the Corporation within the meaning of the Act, any
underwriter, any other shareholder selling securities in such
registration statement and any controlling person of any such
underwriter or other shareholder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act or the 1934
Act insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity
with written information furnished by GM expressly for use in
connection with such registration; and GM will pay any legal or
other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 2.9(b), in connection
with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity
agreement contained in this subsection 2.9(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of GM, which consent shall not be unreasonably withheld;
provided, that, in no event shall any indemnity under this
subsection 2.9(b) exceed the gross proceeds from the offering
received by GM.
(c) Promptly after receipt by an indemnified party under this Section
2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party
under this Section 2.9, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all
other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2.9, but
the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is held by a
court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim,
damage, or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim,
damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with
the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other
relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied
by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
(f) The obligations of the Corporation and GM under this Section 2.9
shall survive the completion of any offering of Registrable
Securities in a registration statement under this Article 2, and
otherwise.
2.10 Reports Under Securities Exchange Act of 1934
With a view to making available to GM the benefits of Rule 144 promulgated under
the Act and any other rule or regulation of the SEC that may at any time permit
GM to sell securities of the Corporation to the public without registration or
pursuant to a registration on Form S-3, Form F-3 or Form F-10, the Corporation
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) use commercially reasonable efforts to take such action as is
necessary to enable GM to utilize Form S-3, Form F-3 or Form F-10
for the sale of its Registrable Securities;
(c) file with the SEC in a timely manner all reports and other documents
required of the Corporation under the Act and the 1934 Act; and
(d) furnish to GM, so long as GM owns any Registrable Securities,
forthwith upon request (i) a written statement by the Corporation
that it has complied with the reporting requirements of SEC Rule
144, the Act and the 1934 Act, or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3, Form F-3 or
Form F-10 (at any time after it so qualifies), (ii) a copy of the
most recent annual or quarterly report of the Corporation and such
other reports and documents so filed by the Corporation, and
(iii) such other information as may be reasonably requested in
availing GM of any rule or regulation of the SEC which permits
the selling of any such securities without registration or
pursuant to such form.
2.11 Form S-3, Form F-3 or Form F-10 Registration
If the Corporation shall receive from GM a written request that the Corporation
effect a registration on Form S-3, Form F-3 or, if the Corporation has prepared
and filed an underlying Canadian prospectus, Form F-10 (collectively a "Short
Form Registration Statement") and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by GM, the
Corporation will:
(a) As soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as
would permit or facilitate the sale and distribution of all or
such portion of GM's Registrable Securities as are specified in
such request, together with all or such portion of the
Registrable Securities of any other shareholder joining in such
request as are specified in a written request given within 15
days after receipt of such written notice from the Corporation;
provided, however, that the Corporation shall not be obligated to
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effect (and in the case of Section 2.11(a)(iii) continue) any
such registration, qualification or compliance, pursuant to this
Section 2.11:
(i) if a Short Form Registration Statement is not available for
such offering by GM;
(ii) if GM, together with the holders of any other securities of
the Corporation entitled to inclusion in such registration,
propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public (net
of any underwriters' discounts or commissions) of less than
$2,500,000;
(iii) if (A) the Corporation has been advised by legal counsel that
such filing or effectiveness would require disclosure of a
material financing, acquisition or other corporate
transaction, and the Board of Directors of the Corporation
determines in good faith that such disclosure is not in the
best interests of the Corporation and its stockholders or (B)
the Board of Directors determines in good faith that there is
a valid business purpose or reason for delaying filing or
effectiveness, in which event the Corporation shall have the
right to defer the filing of the Short Form Registration
Statement for a period of not more than sixty (60) days after
receipt of the request of GM under this Section 2.11;
provided, however, that the Corporation shall not utilize this
right more than twice in any twelve (12) month period;
(iv) if the Corporation has, within the twelve (12) month period
preceding the date of such request, already effected two
registrations on a Short Form Registration Statement for GM
pursuant to this Section 2.11; or
(v) in any particular jurisdiction in which the Corporation would
be required to qualify to do business or to execute a general
consent to service of process in effecting such registration,
qualification or compliance.
(b) Subject to the foregoing, the Corporation shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable
after receipt of the request of GM. All expenses incurred in
connection with a registration requested pursuant to Section
2.11, including (without limitation) all registration, filing,
qualification, printer's and accounting fees and the reasonable
fees and disbursements of counsel for GM and counsel for the
Corporation shall be borne by GM if it participates in a
registration of Registrable Securities pursuant to a Short Form
Registration Statement. Registrations effected pursuant to this
Section 2.11 shall not be counted as demands for registration or
registrations effected pursuant to Sections 2.1 or 2.2,
respectively.
2.12 Assignment of Registration Rights
The rights to cause the Corporation to register Registrable Securities pursuant
to this Article 2 may not be assigned provided that GM may assign such rights to
any person to which it transfers all or any portion of the Registrable
Securities.
2.13 "Market Stand-Off" Agreement
GM hereby agrees that, during the period of duration specified by the
Corporation and an underwriter of Common Shares or other securities of the
Corporation, following the effective date of a registration statement of the
Corporation filed under the Act, it shall not, to the extent requested by the
Corporation and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees who
agree to be similarly bound) any securities of the Corporation held by it at any
time during such period except Common Shares included in such registration;
provided, however, that all officers and directors of the Corporation and all
other persons with registration rights (whether or not pursuant to this
Agreement) enter into similar agreements and such market stand-off time period
shall not exceed 90 days.
In order to enforce the foregoing covenant, the Corporation may impose
stop-transfer instructions with respect to the Registrable Securities (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
Notwithstanding the foregoing, the obligations described in this Section 2.13
shall not apply to a registration relating solely to employee benefit plans on
Form S-l , Form F-1 or Form S-8 or similar forms which may be promulgated in the
future, or a registration relating solely to a SEC Rule 145 transaction on Form
S-4 or similar forms which may be promulgated in the future.
2.14 Termination of Registration Rights
GM shall not be entitled to exercise any right provided for in this Article 2
after seven (7) years from the date of issuance of the Shares and Warrants.
ARTICLE 3
MISCELLANEOUS
3.1 No Successors and Assigns
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
3.2 Governing Law
This Agreement shall be governed by and construed under the laws of the province
of Ontario, Canada as applied to agreements among Ontario residents entered into
and to be performed entirely within Ontario.
3.3 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
3.4 Titles and Subtitles
The titles and subtitles used in this Agreement are used for convenience only
and are not to be considered in construing or interpreting this Agreement.
3.5 Notices
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Article 3 referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail to:
The Corporation
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Pierre Rivard, President
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
and
Brobeck, Phleger & Harrison LLP
1633 Broadway, 47th Floor
New York, New York 10019
Facsimile: (212) 586-7878
Attention: Mark L. Mandel, Esq.
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above
shall be deemed to have been given and received on the day it is delivered or
transmitted, provided that it is delivered or transmitted on a Business Day
prior to 5:00 p.m. local time in the place of delivery or receipt. However, if
the Notice is delivered or transmitted after 5:00 p.m. local time or if such day
is not a Business Day then the Notice shall be deemed to have been given and
received on the next Business Day. Any Party may, from time to time, change its
address by giving Notice to the other Parties in accordance with the provisions
of this Article 3.
3.6 Expenses
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
3.7 Amendments and Waivers
Any term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the
Corporation and GM. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon GM and the Corporation.
3.8 Severability
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
3.9 Aggregation of Stock
All shares of Registrable Securities held or acquired by affiliated entities or
persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
3.10 Entire Agreement; Amendment; Waiver
This Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
HYDROGENICS CORPORATION
By: Pierre Rivard
-----------------------------------
Name: Pierre Rivard
Title: President and CEO
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
-----------------------------------
Name: Lawrence D. Burns
Title: Vice President, Research
& Development and Planning
EX-4
6
hydrogenicsexh4.txt
ESCROW AGREEMENT
Exhibit 4 Execution Copy
HYDROGENICS CORPORATION
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
ESCROW AGREEMENT
October 16, 2001
------------------------------------------------------------------------------
Execution Copy
ESCROW AGREEMENT
THIS AGREEMENT made as of this 16th day of October, 2001.
BETWEEN:
HYDROGENICS CORPORATION, a corporation governed by
the laws of Canada,
(the "Corporation")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by
the laws of the State of Delaware,
("GM")
- and -
OSLER, HOSKIN & HARCOURT LLP,
(the "Escrow Agent")
RECITALS
A. GM is desirous of depositing in escrow certain warrants (the
"Warrants") to purchase common shares of the Corporation owned by them;
B. The Escrow Agent has agreed to undertake and perform its duties
according to the terms and conditions hereof;
THEREFORE this Agreement witnesseth that in consideration of the aforesaid
agreements, and of the sum of one dollar ($1.00) now paid by the parties hereto,
each to the other (receipt of which sum the parties do hereby respectively
acknowledge each to the other) GM covenants and agrees severally with the
Corporation and with the Escrow Agent and the Corporation and the Escrow Agent
covenant and agree each with the other and severally with GM as follows:
1. Deposit of Warrants in Escrow
GM hereby places and deposits in escrow the Warrants, each exercisable for the
purchase of 61,760.9 common shares of the Corporation, which are represented by
certificates number W-1 through W-40 each dated as of the date of this
Agreement, (the "Escrowed Warrants") with the Escrow Agent and hereby undertakes
and agrees forthwith to deliver those securities (including any replacement
securities or certificates if and when such are issued or allotted) to the
Escrow Agent for deposit in escrow.
2. Restriction on Transfer
The parties hereby agree that the Escrowed Warrants and the beneficial ownership
of any interest in them and the certificates representing them (including any
replacement certificates) shall not be sold, assigned, hypothecated, alienated,
released from escrow, transferred within escrow, or otherwise in any manner
dealt with except in accordance with this Agreement.
3. Direction to Escrow Agent
GM hereby directs the Escrow Agent to retain the Escrowed Warrants and the
certificates (including any replacement securities or certificates) representing
same and not to do or cause anything to be done to release the same from escrow
or to allow any transfer, hypothecation or alienation thereof.
4. Release from Escrow
The Escrow Agent shall release from escrow and deliver to GM one Warrant
Certificate on the 15th of every month commencing on November 15, 2001 and shall
continue to do so until such time as either (a) the Corporate Alliance Agreement
entered into between the Corporation and GM on the date hereof shall have been
terminated; or (b) all of the Escrowed Warrants (including any replacemetn
securities or certificates) shall have been released from escrow in accordance
with the terms hereof.
5. Acknowledgement
The Corporation hereby acknowledges the terms and conditions of this Agreement
and agrees to take all reasonable steps to facilitate its performance.
6. Resignation of Escrow Agent
If the Escrow Agent shall wish to resign, it shall give at least three months'
notice to the Corporation, which may, by writing appoint another Escrow Agent in
its place, provided such Escrow Agent is a trust company authorized to carry on
business in the Province of Ontario and such appointment shall be binding on the
Security Holders and the new Escrow Agent shall assume and be bound by the
obligations of the Escrow Agent, if a successor agent has not been appointed,
then the Corporation or the Security Holder may apply to the Ontario Court of
Justice (General Division) for the appointment of a successor agent. Failing
such application to the court within thirty (30) days from such effective date,
then the Escrow Agent shall deliver the Escrowed Warrants to the Corporation to
be held in trust for the Security Holders pursuant to this Agreement.
7. Expenses
The Corporation shall pay the Escrow Agent for the above-mentioned services
during the terms of this Agreement and shall reimburse the Escrow Agent for all
costs and expenses, including legal fees incurred for the carrying out of its
duties hereunder.
8. Acceptance
The Escrow Agent hereby accepts the covenants and obligations in this Agreement
declared and provided for and agrees to perform the same upon the terms and
conditions herein set forth and to hold and exercise the rights, privileges and
benefits conferred upon it hereunder.
9. Terms of Escrow Agent Appointment
The acceptance by the Escrow Agent of its duties and obligations under this
Agreement is subject to the following terms and conditions, which the parties to
this Agreement hereby agree shall govern and control with respect to its rights,
duties, liabilities and immunities:
(a) in the exercise and discharge of its rights and duties hereunder,
the Escrow Agent shall act honestly and in good faith and shall
exercise the degree of care, diligence and skill that a reasonably
prudent escrow agent would exercise in comparable circumstances.
(b) the Escrow Agent shall not be responsible or liable in any manner
whatever for the sufficiency, correctness, genuineness or validity
of any security deposited with it.
(c) the Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, receipt or other paper or document
furnished to it, not only as to its due execution and the validity
and effectiveness of its provisions but also as to the truth and
acceptability of any information therein contained which it in good
faith believes to be genuine and what it purports to be;
(d) except for the Escrow Agent's act of negligence or wilful
misconduct the Escrow Agent shall not be liable for any act done or
step taken or omitted by it in good faith, or for any mistake of
fact or law and the Corporation and GM jointly and severally agree
to indemnify and save harmless the Escrow Agent from and against all
claims, demands, actions, suits or other proceedings and
whomsoever made, prosecuted or brought and from all loss, costs,
damages and expenses whatsoever in any manner based upon,
occasioned by or attributable to any act of the Escrow Agent in
the execution of its duties hereunder;
(e) the Escrow Agent represents that, at the time of execution and
delivery hereof, no material conflict of interest exists in the
Escrow Agent's role as a fiduciary hereunder and agrees that, in the
event of a material conflict of interest arising hereafter, it
shall, within ten (10) days after ascertaining that it has such a
material conflict of interest, either eliminate such conflict or
resign as Escrow Agent hereunder;
(f) the Escrow Agent may consult with and obtain advice from legal
counsel in the event of any question as to any of the provisions
hereof of its duties hereunder, and it shall incur no liability and
shall be fully protected in acting in good faith in accordance with
the opinion and instructions of such counsel.
(g) the Escrow Agent may, in its personal or any other capacity, invest
in, lend on, deal in and hold securities of the Corporation (other
than the Escrowed Warrants) and generally may contract with the
Corporation without being liable to account for any profit or gain
realized thereby;
(h) The Escrow Agent shall have no duties except those which are
expressly set forth herein, and it shall not be bound by any notice
of a claim or demand with respect thereto, or any waiver,
modification, amendment, termination or rescission of this
Agreement, unless received by it in writing, and signed by the other
parties hereto, and, if its duties herein are affected, unless it
shall have given its prior written consent thereto; and
(i) in the event of any disagreement arising regarding the terms of the
Agreement, the Escrow Agent shall be entitled at its option to
refuse to comply with any and all demands whatsoever until the
dispute is settled either amongst the parties or by act of competent
jurisdiction.
10. Notice
Any notice required or permitted to be given hereunder shall be given by prepaid
registered mail or via facsimile with a copy to follow by prepaid registered
mail as follows:
The Corporation
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Pierre Rivard, President
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Escrow Agent:
Osler, Hoskin & Harcourt LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark A. Trachuk
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
11. Counterparts
This Agreement may be executed in several parts in the same form and such parts
as so executed shall together from one original agreement, and such parts, if
more than one, shall be read together and construed as if all the signing
parties hereto had executed one copy of this Agreement, and delivery of the
counterparts may be effected by means of telecopier.
12. Termination
This Agreement shall terminate either when (a) the Corporate Alliance Agreement
shall have been terminated; or (b) all of the Escrowed Warrants (including any
replacement securities or certificates) have been released from escrow in
accordance with the terms hereof. If there remains in escrow any Escrowed
Warrants upon termination of this Agreement, the Escrow Agent shall immediately
return such Escrowed Warrants to the Corporation.
13. Definitions and Interpretation
All capitalized terms used herein and not otherwise defined shall have the
meaning ascribed thereto in the subscription agreement between the corporation
and GM dated the date hereof. Wherever the singular or masculine are used
throughout this Agreement, the same shall be construed as being the plural or
feminine or neuter where the context so requires.
14. Time
Time shall be of the essence of this Agreement.
15. Binding Agreement
This Agreement shall enure to the benefit of and be binding on the parties
hereto and their respective heirs, administrators, executors, successors and
permitted assigns.
16. Choice of Law
This Agreement shall be construed and interpreted in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein.
IN WITNESS WHEREOF the parties hereto have executed these presents the day and
year first above written.
HYDROGENICS CORPORATION
By: Pierre Rivard
---------------------------------
Name: Pierre Rivard
Title: President and CEO
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
---------------------------------
Name: Lawrence D. Burns
Title: Vice President
OSLER, HOSKIN & HARCOURT LLP, as
Escrow Agent
By: Mark Trachuk
---------------------------------
Name: M. Trachuk
Title: Partner
SCHEDULE "A"
RELEASE DIRECTION
To: Osler, Hoskin & Harcourt LLP, Escrow Agent
c. General Motor Corporation, General Counsel
Re: Escrow Agreement dated October 16, 2001, (the "Escrow Agreement")
between Hydrogenics Corporation and General Motors Corporation
------------------------------------------------------------------------------
Reference is made to Section 4 of the Escrow Agreement. The undersigned hereby
directs the Escrow Agent to release from escrow to GM forthwith, at GM's
direction an Escrowed Warrant to purchase 61,760.9 common shares of the
Corporation and this direction shall be your good and proper authority for doing
so.
All capitalized terms used in this direction shall have the meaning ascribed
thereto in the Escrow Agreement.
Signed this __________day of __________, _______.
HYDROGENICS CORPORATION
By:
---------------------------------
Name:
Title:
EX-5
7
hydrogenicsexh5.txt
RIGHT OF FIRST REFUSAL AGREEMENT
Exhibit 5 Execution Copy
JOSEPH CARGNELLI
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
RIGHT OF FIRST REFUSAL AGREEMENT
October 16, 2001
------------------------------------------------------------------------------
THIS AGREEMENT is made October 16, 2001
BETWEEN:
JOSEPH CARGNELLI, and individual resident in the Province of
Ontario
(the "Founder")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by the laws
of the State of Delaware,
("GM")
RECITALS:
A. GM and the Founder each beneficially owns or exercises control or
direction over common shares in the capital of Hydrogenics Corporation
(the "Corporation"); and
B. The Parties wish to enter into an agreement granting GM with a right of
first refusal to acquire the shares of the Corporation owned by the
Founder.
THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 Definitions
Whenever used in this Agreement, the following words and terms have the meanings
set out below:
"Acceptance Notice" has the meaning given to it in subsection 2.3.
"Acceptance Period" has the meaning given to it in subsection 2.2.
"Affiliate" means, with respect to any specified Party, any company that
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Party specified. For
purposes of this definition, "control" including with correlative
meanings, the terms "controlled by" and "under common control with" means
ownership directly or indirectly of more than fifty percent (50%) of the
equity capital having the right to vote for election of directors (or in
the case of an entity other than a corporation, the equivalent management
authority); provided that a pension plan, profit sharing plan, or advisor
to such a plan that does not buy, sell or vote securities at the order,
direction or recommendation of GM shall not be deemed to be an "Affiliate"
of GM.
"Agreement" means this agreement, including all schedules, and all
amendments or restatements as permitted, and references to "Article" or
"Section" mean the specified Article or Section of this Agreement.
"Business Day" means any day, other than a Saturday or Sunday, on which
the Corporation's principal bank is open for commercial banking business
in both Toronto, Ontario and New York, New York during normal banking
hours.
"Competitor" means any Person in active competition with GM in the
automotive or fuel cell industry.
"Offeror" has the meaning given to it in subsection 2.1.
"Parties" means, collectively, GM and the Corporation and "Party" means
any one of them.
"Person" means any individual, sole proprietorship, partnership, firm,
entity, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, body corporate, government, government
regulatory authority, governmental department, agency, commission, board,
tribunal, dispute settlement panel or body, bureau, court, and where the
context requires any of the foregoing when they are acting as trustee,
executor, administrator or other legal representative.
"Purchase Offer" has the meaning given to it in subsection 2.1.
"Sale Notice" has the meaning given to it in subsection 2.2.
"Shares" means common shares in the capital of the Corporation owned by
the Founder.
1.2 Certain Rules of Interpretation
In this Agreement:
(a) Governing Law - This Agreement is a contract made under and shall be
governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario.
(b) Headings - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
(c) Including - Where the word "including" or "includes" is used in this
Agreement, it means "including (or includes) without limitation".
(d) No Strict Construction- The language used in this Agreement is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any Party.
(e) Number and Gender - Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(f) Severability - If, in any jurisdiction, any provision of this
Agreement or its application to any Party or circumstance is
restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without
invalidating the remaining provisions of this Agreement and without
affecting the validity or enforceability of such provision in any
other jurisdiction or without affecting its application to other
Parties or circumstances.
(g) Statutory References - A reference to a statute includes all
regulations made pursuant to such statute and, unless otherwise
specified, the provisions of any statute or regulation which amends,
supplements or supersedes any such statute or any such regulation.
(h) Time - Time is of the essence in the performance of the Parties'
respective obligations.
(i) Time Periods - Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done shall
be calculated by excluding the day on which the period commences and
including the day on which the period ends and by extending the
period to the next Business Day following if the last day of the
period is not a Business Day.
1.3 Entire Agreement
This Agreement and the agreements and other documents required to be delivered
pursuant to this Agreement, constitute the entire agreement between the Parties
and set out all the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to the
subject matter of this Agreement and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written. There are
no covenants, promises, warranties, representations, conditions, understandings
or other agreements, oral or written, express, implied or collateral between the
Parties in connection with the subject matter of this Agreement except as
specifically set forth in this Agreement and any document required to be
delivered pursuant to this Agreement.
ARTICLE 2
RIGHT OF FIRST REFUSAL
2.1 Third Party Offer
For so long as GM and its Affiliates continue to hold in the aggregate not less
than 10% of the issued and outstanding common shares in the capital of the
Corporation, in the event that:
(a) the Founder receives from any Person a bona fide offer to purchase
or otherwise acquire, directly or indirectly, substantially all of
the Shares for a purchase price payable in cash, shares or other
consideration upon closing, or
(b) the Founder receives from a Competitor a bona fide offer to purchase
or otherwise acquire, directly or indirectly, any of the Shares for
a purchase price payable in cash, shares or other consideration upon
closing,
(each such offer being referred to in this section 2 as a "Purchase Offer" and
each such offeror or Competitor, as the case may be, being referred to in this
section 2 as the "Offeror") and the Founder intends to accept such Purchase
Offer if the right of first refusal provided herein is not exercised, the
Founder shall be free, subject to the terms hereof, to sell the Shares to the
Offeror at the price and upon the terms and conditions set forth in the Purchase
Offer, provided the Founder has first offered the Shares to GM in the manner and
on the terms specified below and GM has not given proper notice as specified
below that it intends to purchase the Shares.
2.2 Sale Notice
Whenever the Founder receives a Purchase Offer which satisfies the requirements
of subsection 2.1 and intends to accept such Purchase Offer subject only to the
provisions of this Agreement, the Founder shall so advise GM by giving to it a
notice of sale (a "Sale Notice"), together with a true copy of the Purchase
Offer within 5 (five) Business Days of receipt of such Purchase Offer. In such
Sale Notice, the Founder shall identify the Offeror (and any persons controlling
the Offeror to the knowledge of the Founder) and shall offer to sell the Shares
to GM at the same or cash equivalent aggregate purchase price (which shall be
specified in the Sale Notice) and in all other respects on the same terms and
conditions as provided in the Purchase Offer. The offer contained in the Sale
Notice shall be irrevocable, except with the consent of GM, and shall be open
for acceptance for a period of 5 (five) Business Days after the date upon which
the Sale Notice was received by GM (the "Acceptance Period").
2.3 Rights of GM
Upon receiving the Sale Notice GM shall have the right to purchase the Shares
upon the terms set forth in the Sale Notice.
Within the Acceptance Period GM may give to the Founder a notice in writing (an
"Acceptance Notice") accepting the offer contained in the Sale Notice. If GM
does not give an Acceptance Notice within the Acceptance Period the rights of GM
to purchase the Shares shall cease and the Founder may sell the Shares, in
accordance with this section 2 and free of GM's right of first refusal, to the
Offeror at the price and upon the terms and conditions specified in the Purchase
Offer.
2.4 Completion of Transfer
Any transfer to GM, pursuant to this section 2, shall be completed upon the date
selected by GM, provided that such date may be no later than 5 (five) Business
Days after the expiry of the Acceptance Period.
Any transfer of the Shares to the Offeror in accordance with this section 2 must
be completed upon the terms of the Purchase Offer failing which the provisions
of this section 2 shall again apply to any proposed transfer of the Shares.
2.5 Rights of the Founder
For greater certainty, GM acknowledges that nothing in this Agreement is
intended to prohibit the Founder from making ordinary market sales of Shares
using the facilities of the Nasdaq National Market or the Toronto Stock Exchange
in accordance with applicable securities laws.
ARTICLE 3
GENERAL
3.1 Termination
This Agreement shall terminate upon termination of the Corporate Alliance
Agreement entered into between GM and the Corporation on the date hereof.
3.2 Public Notices
All public notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be jointly planned and
co-ordinated by the Corporation and GM and no Party shall act unilaterally in
this regard without the prior approval of the other Parties, such approval not
to be unreasonably withheld, unless such disclosure shall be required to meet
timely disclosure obligations of any Party under applicable securities laws and
stock exchange rules in circumstances where prior to consultation with the other
Parties is not practicable.
3.3 Notices
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
The Founder
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Joseph Cargnelli
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
3.4 Amendment
No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any Party,
shall be binding unless executed in writing by the Party to be bound thereby.
3.5 Assignment
Neither this Agreement nor any rights or obligations under this Agreement shall
be assignable by any Party without the prior written consent of each of the
other Parties. Subject thereto, this Agreement shall enure to the benefit of and
be binding upon the Parties and their respective successors (including any
successor by reason of amalgamation of any Party) and permitted assigns.
3.6 Further Assurances
The Parties shall with reasonable diligence do all such things and provide all
such reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each Party shall provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out its
provisions.
3.7 Execution and Delivery
This Agreement may be executed by the Parties in counterparts and may be
executed and delivered by facsimile and all such counterparts and facsimiles
shall together constitute one and the same agreement.
IN WITNESS OF WHICH the parties have duly executed this Agreement.
SIGNED, SEALED & DELIVERED
In the presence of:
Jonathan Lundy Pierre Rivard
--------------- ---------------
Witness
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
---------------------------------
Name: Lawrence D. Burns
Title: Vice President, Research
& Development and Planning
EX-6
8
hydrogenicsexh6.txt
RIGHT OF FIRST REFUSAL AGREEMENT
Exhibit 6 Execution Copy
PIERRE RIVARD
- and -
GENERAL MOTORS CORPORATION
------------------------------------------------------------------------------
RIGHT OF FIRST REFUSAL AGREEMENT
October 16, 2001
------------------------------------------------------------------------------
THIS AGREEMENT is made October 16, 2001
BETWEEN:
PIERRE RIVARD, and individual resident in the Province of Ontario
(the "Founder")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by the laws
of the State of Delaware,
("GM")
RECITALS:
A. GM and the Founder each beneficially owns or exercises control or
direction over common shares in the capital of Hydrogenics Corporation
(the "Corporation"); and
B. The Parties wish to enter into an agreement granting GM with a right of
first refusal to acquire the shares of the Corporation owned by the
Founder.
THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 Definitions
Whenever used in this Agreement, the following words and terms have the meanings
set out below:
"Acceptance Notice" has the meaning given to it in subsection 2.3.
"Acceptance Period" has the meaning given to it in subsection 2.2.
"Affiliate" means, with respect to any specified Party, any company that
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Party specified. For
purposes of this definition, "control" including with correlative
meanings, the terms "controlled by" and "under common control with" means
ownership directly or indirectly of more than fifty percent (50%) of the
equity capital having the right to vote for election of directors (or in
the case of an entity other than a corporation, the equivalent management
authority); provided that a pension plan, profit sharing plan, or advisor
to such a plan that does not buy, sell or vote securities at the order,
direction or recommendation of GM shall not be deemed to be an "Affiliate"
of GM.
"Agreement" means this agreement, including all schedules, and all
amendments or restatements as permitted, and references to "Article" or
"Section" mean the specified Article or Section of this Agreement.
"Business Day" means any day, other than a Saturday or Sunday, on which
the Corporation's principal bank is open for commercial banking business
in both Toronto, Ontario and New York, New York during normal banking
hours.
"Competitor" means any Person in active competition with GM in the
automotive or fuel cell industry.
"Offeror" has the meaning given to it in subsection 2.1.
"Parties" means, collectively, GM and the Corporation and "Party" means
any one of them.
"Person" means any individual, sole proprietorship, partnership, firm,
entity, unincorporated association, unincorporated syndicate,
unincorporated organization, trust, body corporate, government, government
regulatory authority, governmental department, agency, commission, board,
tribunal, dispute settlement panel or body, bureau, court, and where the
context requires any of the foregoing when they are acting as trustee,
executor, administrator or other legal representative.
"Purchase Offer" has the meaning given to it in subsection 2.1.
"Sale Notice" has the meaning given to it in subsection 2.2.
"Shares" means common shares in the capital of the Corporation owned by
the Founder.
1.2 Certain Rules of Interpretation
In this Agreement:
(a) Governing Law - This Agreement is a contract made under and shall be
governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable in the
Province of Ontario.
(b) Headings - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
(c) Including - Where the word "including" or "includes" is used in this
Agreement, it means "including (or includes) without limitation".
(d) No Strict Construction- The language used in this Agreement is the
language chosen by the Parties to express their mutual intent, and
no rule of strict construction shall be applied against any Party.
(e) Number and Gender - Unless the context otherwise requires, words
importing the singular include the plural and vice versa and words
importing gender include all genders.
(f) Severability - If, in any jurisdiction, any provision of this
Agreement or its application to any Party or circumstance is
restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without
invalidating the remaining provisions of this Agreement and without
affecting the validity or enforceability of such provision in any
other jurisdiction or without affecting its application to other
Parties or circumstances.
(g) Statutory References - A reference to a statute includes all
regulations made pursuant to such statute and, unless otherwise
specified, the provisions of any statute or regulation which amends,
supplements or supersedes any such statute or any such regulation.
(h) Time - Time is of the essence in the performance of the
Parties' respective obligations.
(i) Time Periods - Unless otherwise specified, time periods within or
following which any payment is to be made or act is to be done shall
be calculated by excluding the day on which the period commences and
including the day on which the period ends and by extending the
period to the next Business Day following if the last day of the
period is not a Business Day.
1.3 Entire Agreement
This Agreement and the agreements and other documents required to be delivered
pursuant to this Agreement, constitute the entire agreement between the Parties
and set out all the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to the
subject matter of this Agreement and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written. There are
no covenants, promises, warranties, representations, conditions, understandings
or other agreements, oral or written, express, implied or collateral between the
Parties in connection with the subject matter of this Agreement except as
specifically set forth in this Agreement and any document required to be
delivered pursuant to this Agreement.
ARTICLE 2
RIGHT OF FIRST REFUSAL
2.1 Third Party Offer
For so long as GM and its Affiliates continue to hold in the aggregate not less
than 10% of the issued and outstanding common shares in the capital of the
Corporation, in the event that:
(a) the Founder receives from any Person a bona fide offer to purchase
or otherwise acquire, directly or indirectly, substantially all of
the Shares for a purchase price payable in cash, shares or other
consideration upon closing, or
(b) the Founder receives from a Competitor a bona fide offer to purchase
or otherwise acquire, directly or indirectly, any of the Shares for
a purchase price payable in cash, shares or other consideration upon
closing,
(each such offer being referred to in this section 2 as a "Purchase Offer" and
each such offeror or Competitor, as the case may be, being referred to in this
section 2 as the "Offeror") and the Founder intends to accept such Purchase
Offer if the right of first refusal provided herein is not exercised, the
Founder shall be free, subject to the terms hereof, to sell the Shares to the
Offeror at the price and upon the terms and conditions set forth in the Purchase
Offer, provided the Founder has first offered the Shares to GM in the manner and
on the terms specified below and GM has not given proper notice as specified
below that it intends to purchase the Shares.
2.2 Sale Notice
Whenever the Founder receives a Purchase Offer which satisfies the requirements
of subsection 2.1 and intends to accept such Purchase Offer subject only to the
provisions of this Agreement, the Founder shall so advise GM by giving to it a
notice of sale (a "Sale Notice"), together with a true copy of the Purchase
Offer within 5 (five) Business Days of receipt of such Purchase Offer. In such
Sale Notice, the Founder shall identify the Offeror (and any persons controlling
the Offeror to the knowledge of the Founder) and shall offer to sell the Shares
to GM at the same or cash equivalent aggregate purchase price (which shall be
specified in the Sale Notice) and in all other respects on the same terms and
conditions as provided in the Purchase Offer. The offer contained in the Sale
Notice shall be irrevocable, except with the consent of GM, and shall be open
for acceptance for a period of 5 (five) Business Days after the date upon which
the Sale Notice was received by GM (the "Acceptance Period").
2.3 Rights of GM
Upon receiving the Sale Notice GM shall have the right to purchase the Shares
upon the terms set forth in the Sale Notice.
Within the Acceptance Period GM may give to the Founder a notice in writing (an
"Acceptance Notice") accepting the offer contained in the Sale Notice. If GM
does not give an Acceptance Notice within the Acceptance Period the rights of GM
to purchase the Shares shall cease and the Founder may sell the Shares, in
accordance with this section 2 and free of GM's right of first refusal, to the
Offeror at the price and upon the terms and conditions specified in the Purchase
Offer.
2.4 Completion of Transfer
Any transfer to GM, pursuant to this section 2, shall be completed upon the date
selected by GM, provided that such date may be no later than 5 (five) Business
Days after the expiry of the Acceptance Period.
Any transfer of the Shares to the Offeror in accordance with this section 2 must
be completed upon the terms of the Purchase Offer failing which the provisions
of this section 2 shall again apply to any proposed transfer of the Shares.
2.5 Rights of the Founder
For greater certainty, GM acknowledges that nothing in this Agreement is
intended to prohibit the Founder from making ordinary market sales of Shares
using the facilities of the Nasdaq National Market or the Toronto Stock Exchange
in accordance with applicable securities laws.
ARTICLE 3
GENERAL
3.1 Termination
This Agreement shall terminate upon termination of the Corporate Alliance
Agreement entered into between GM and the Corporation on the date hereof.
3.2 Public Notices
All public notices to third parties and all other publicity concerning the
transactions contemplated by this Agreement shall be jointly planned and
co-ordinated by the Corporation and GM and no Party shall act unilaterally in
this regard without the prior approval of the other Parties, such approval not
to be unreasonably withheld, unless such disclosure shall be required to meet
timely disclosure obligations of any Party under applicable securities laws and
stock exchange rules in circumstances where prior to consultation with the other
Parties is not practicable.
3.3 Notices
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
The Founder
Hydrogenics Corporation
5985 McLaughlin Road
Mississauga, ON L5R 1B8
Facsimile: 905-361-3626
Attention: Pierre Rivard
with a copy to:
Osler, Hoskin & Harcourt, LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8
Facsimile: 416-862-6666
Attention: Mark Trachuk
GM:
General Motors Corporation
300 Renaissance Center
P.O. Box 300
Detroit, MI 48265-3000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
3.4 Amendment
No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any Party,
shall be binding unless executed in writing by the Party to be bound thereby.
3.5 Assignment
Neither this Agreement nor any rights or obligations under this Agreement shall
be assignable by any Party without the prior written consent of each of the
other Parties. Subject thereto, this Agreement shall enure to the benefit of and
be binding upon the Parties and their respective successors (including any
successor by reason of amalgamation of any Party) and permitted assigns.
3.6 Further Assurances
The Parties shall with reasonable diligence do all such things and provide all
such reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each Party shall provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out its
provisions.
3.7 Execution and Delivery
This Agreement may be executed by the Parties in counterparts and may be
executed and delivered by facsimile and all such counterparts and facsimiles
shall together constitute one and the same agreement.
IN WITNESS OF WHICH the parties have duly executed this Agreement.
SIGNED, SEALED & DELIVERED
In the presence of:
Jonathan Lundy Pierre Rivard
-------------- --------------
Witness
GENERAL MOTORS CORPORATION
By: Lawrence D. Burns
---------------------------------
Name: Lawrence D. Burns
Title: Vice President, Research
& Development and Planning
EX-7
9
hydrogenics13d.txt
RIGHT OF FIRST REFUSAL AGREEMENT
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Schedule 13d
(Amendment No. )*
HYDROGENICS CORPORATION
(Name of Issuer)
Common Shares
(Title of Class of Securities)
448882 10 0
(CUSIP Number)
Anne T. Larin
Legal Staff
General Motors Corporation
Mail Code 482-C23-D24
300 Renaissance Center
Detroit, Michigan 48265-3000
(313) 665-4927
(Name, Address, and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 16, 2001
----------------
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Rules 13d-1(e), 13d-1(f), or 13d-1(g), check the following
box .
1. NAME OF REPORTING PERSON: General Motors Corporation
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY):
38-0572515
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: Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7. SOLE VOTING POWER: 11,487,528
8. SHARED VOTING POWER: -0-.
9. SOLE DISPOSITIVE POWER: 11,487,528
10. SHARED DISPOSITIVE POWER: -0-
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
11,487,528
12. CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: .
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 24.0%.
14. TYPE OF REPORTING PERSON (SEE INSTRUCTIONS): CO.
Item 1. Security and Issuer.
This Statement refers to Common Shares and Warrants to Purchase
Common Shares of Hydrogenics Corporation, a Canadian corporation
("Hydrogenics"). Hydrogenics' business address is 5985 McLaughlin Road,
Mississauga, Ontario C5R 1B8 Canada
Item 2. Identity and Background.
This Statement is filed by General Motors Corporation, a Delaware
corporation ("General Motors" or "GM"). GM's business address is 100 Renaissance
Center, Detroit, Michigan 48243-7301. General Motors is engaged in the design,
manufacturing and marketing of cars, trucks, locomotives, and heavy duty
transmissions and related parts and accessories, financing and insurance
operations, and telecommunications.
The names, business addresses, and principal businesses of each of
the directors and executive officers of General Motors Corporation ("GM") are
set forth on Schedule I hereto and incorporated by reference herein. To the best
knowledge of GM, each of its respective executive officers and directors is a
United States citizen other than Nobuyuki Idei, who is a citizen of Japan, Percy
N. Barnevik, who is a citizen of Sweden, and Eckhard Pfeiffer, who is a citizen
of Germany.
Item 3. Source and Amount of Funds or Other Consideration.
GM acquired 11,364,006 common shares and warrants to purchase
an additional 2,470,436 shares (collectively, the "Securities") from Hydrogenics
Corporation ("Hydrogenics") in exchange for access to certain fuel cell
technology and participation in a strategic alliance with GM to commercialize
that technology. GM did not provide any cash consideration to Hydrogenics.
Item 4. Purpose of Transaction.
General Motors acquired the Securities in connection with forming a
strategic alliance with Hydrogenics that will included shared intellectual
property rights and joint efforts in fuel cell product development, engineering,
prototyping, testing, branding, and marketing strategies. The purpose of GM's
acquisition is to share in a possible increase in value of a significant
business associate.
Under the Governance Agreement dated October 16, 2001 between GM and
Hydrogenics (the "Governance Agreement"), Hydrogenics increased the number of
its directors to eight and appointed an individual designated by General Motors
to its board. General Motors under the Governance Agreement may not acquire
additional Hydrogenics stock for four years, except the exercise of (a) the
warrants that are included in the Securities, (b) certain rights of first
refusal covering shares now held by the founding members of Hydrogenics, and (c)
pre-emptive rights to participate in issuances of new shares for cash. The
Governance Agreement also provides that General Motors cannot sell any of the
Securities for three years, and that this restriction is then gradually lifted
over the next three years.
Except as described in this Item 4 and in Item 6 below, GM does not
have any plan or proposal that relates to or would result in any of the actions
or events described in items (a) through (j) in the Instructions to Item 4 of
Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a) General Motors is the beneficial owner of 11,364,006 common shares
of Hydrogenics, or 24.0% of the outstanding common shares of Hydrogenics, and
warrants exercisable within 60 days of the date of this Schedule 13D to purchase
123,522 common shares of Hydrogenics, which would be less than 0.1% of the
outstanding common shares of Hydrogenics.
(b) General Motors has the sole power to vote and to dispose of the
Securities described in the response to paragraph (a).
(c) Except for the transaction reported in this Statement, GM has
not engaged in any other transactions in the common shares of Hydrogenics within
the past 60 days. To GM's best knowledge, none of its executive officers or
directors has effected any transactions in the common shares of Hydrogenics
within the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer--Shareholder Governance Agreement,
Registration Rights Agreement, Escrow Agreement.
Governance Agreement. Set forth below is a description of certain material
provisions of the Governance Agreement:
Board of Directors. Hydrogenics' board of directors consists of eight
members, one of whom is designated by General Motors. General Motors also
has the right to appoint an observer to attend meetings of Hydrogenics'
board.
Limitations on Acquisition of Shares. For fours years after the date of
the Governance Agreement may not purchase any voting or equity securities
of Hydrogenics, nor purchase substantially all of the assets of
Hydrogenics, nor solicit proxies from its shareholders, except by
exercising the warrants that comprise part of the Securities,
participating in a stock issuance by Hydrogenics pursuant to GM's
pre-emptive rights, or acquiring the stock of certain major stockholders
pursuant to a right of first refusal described below.
Limitations on Dispositions of Shares. General Motors may not sell any
Hydrogenics stock for three years after the date of the Governance
Agreement. Beginning on the third anniversary of the Governance Agreement,
these resale restrictions will be lifted on 11,364,006 shares, the
following year on 7,576,004 shares, and the following year 3,788,002.
Pre-Emptive Rights. General Motors has the right to purchase a pro rata
share of any issuance of equity securities by Hydrogenics for cash (with
certain enumerated exceptions).
Registration Rights Agreement. Under a Registration Rights Agreement dated
October 16, 2001 between Hydrogenics and GM (the "Registration Rights
Agreement"), beginning on the third anniversary of the Agreement, General Motors
will have the right to demand upon to three registration statements to cover the
resale of the Securities. GM will also have the right to include the Securities
in registered offerings initiated by Hydrogenics and to require Hydrogenics to
file not more than two short form registration statements covering the
Securities per year.
Escrow Agreement. The Escrow Agreement dated October 16, 2001 between
Hydrogenics, GM, and Hydrogenics' outside counsel provides that the warrants
that comprise part of the Securities will be held in escrow, and that monthly
beginning on November 15, 2001 the escrow agent will deliver to General Motors
one warrant to purchase 61,760.90 common shares of Hydrogenics.
Right of First Refusal Agreements. General Motors entered into agreements with
three major stockholders of Hydrogenics providing that GM has the right to
purchase shares from such stockholder if he agrees to sell substantially all his
shares to any purchaser, or any of his shares to a competitor of GM or
Hydrogenics in the automotive or fuel cell industry. GM's right of first refusal
would not apply to an ordinary market sale on the Nasdaq National Market system
or the Toronto Stock Exchange.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1 Share Subscription Agreement dated October 16, 2001
between Hydrogenics Corporation and General Motors
Corporation.
Exhibit 2 Governance Agreement dated October 16, 2001 between
Hydrogenics Corporation and General Motors
Corporation.
Exhibit 3 Registration Rights Agreement dated October 16, 2001
between Hydrogenics Corporation and General Motors
Corporation.
Exhibit 4 Escrow Agreement dated October 16, 2001 between
Hydrogenics Corporation, General Motors Corporation,
and Osler, Hoskin and Harcourt LLP.
Exhibit 5 Right of First Refusal Agreement dated October 16,
2001 between General Motors Corporation and Joseph
Cargnelli.
Exhibit 6 Right of First Refusal Agreement dated October 16,
2001 between General Motors Corporation and Pierre
Rivard.
Exhibit 7 Right of First Refusal Agreement dated October 16,
2001 between General Motors Corporation and Boyd
Taylor.
SIGNATURE
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.
GENERAL MOTORS CORPORATION
By: Thomas A. Gottschalk
---------------------------
Name: Thomas A. Gottschalk
Title: Executive Vice President,
Law & Public Policy and
General Counsel
Date: October 24, 2001
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
GENERAL MOTORS CORPORATION
The name, business address, present principal occupation or employment,
and the name, principal business, and address of any corporation or other
organization in which such employment is conducted, of each of the directors and
executive officers of General Motors is set forth below. Unless otherwise
specified, the business address of each person listed below is 100 Renaissance
Center, Detroit, Michigan 48243-7301.
NAME, BUSINESS ADDRESS AND PRINCIPAL
OCCUPATION, IF NOT EXECUTIVE OFFICER
OF GM POSITION WITH GM
Percy N. Barnevik Director
Chairman, ABB Ltd.
Affolternstrasse 44
Box 8131
CH-8050 Zurich Switzerland
John H. Bryan Director
Retired Chairman, Sara Lee Corporation
Three First National Plaza, 46th Floor
Chicago, Illinois 60602-4260
John M. Devine Vice Chairman and Chief Financial
Officer
Thomas E. Everhart Director
President Emeritus
California Institute of Technology
1200 E. California Blvd.
Pasadena, California 91125
John D. Finnegan Executive Vice President; Chairman
and President, General Motors
Acceptance Corporation
George M.C. Fisher Director
Retired Chairman, Eastman Kodak Company
343 State Street
Rochester, New York 1460-0229
Thomas A. Gottschalk Executive Vice President,
Law & Public Policy and
General Counsel
Nobuki Idei Director
Chairman and Chief Executive Officer
Sony Corporation
6-7-35 Kitashinagawa
Shinagawa-ku Tokyo 141-0001 Japan
Karen Katen Director
Executive Vice President, Pfizer Inc
and President, Pfizer Global
Pharmaceuticals
235 East 42nd Street
New York, New York 10017-5755
Robert A. Lutz Vice Chairman, Product Development
J. Willard Marriott, Jr. Director
Chairman and Chief Executive Officer
Marriott International, Inc.
One Marriott Drive
Washington, D.C. 20058
E. Stanley O'Neal Director
President and Chief Operating Officer
Merrill Lynch & Co., Inc.
717 Fifth Avenue, 9th Floor
New York, NY 10022
Eckhard Pfeiffer Director
Retired Chief Executive Officer,
Compaq Computer Company
7 Saddlebrook Lane
Houston, Texas 77024
John F. Smith, Jr. Director and Chairman
G. Richard Wagoner, Jr. Director, President and Chief
Executive Officer
Lloyd D. Ward Director
Chief Executive Officer, United
States Olympic Committee (eff.
11/1/01)
One Olympic Plaza
Colorado Springs, Colorado 80909
Ronald L. Zarrella Executive Vice President;
President, General Motors North
America