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