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 ------------------------------------------------------------------------------ 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 -------- ------- 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 -------- ------- 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 -------- ------- 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