SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 21, 2020
(Exact name of registrant as specified in its charter)
(State or other jurisdiction
|(Commission File Number)||
10 E. Yanonali, Suite 36
Santa Barbara, CA 93101
(Address of principal executive offices and Zip Code)
Registrant’s telephone number, including area code: (805) 966-6566
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
|☐||Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)|
|☐||Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)|
|☐||Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))|
|☐||Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))|
Securities registered pursuant to Section 12(b) of the Act:
|Title of each class||Trading Symbol(s)||Name of each exchange on which registered|
|Not applicable||Not applicable||Not applicable|
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b2 of the Securities Exchange Act of 1934 (§240.12b2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On September 21, 2020, SunHydrogen, Inc. (the “Company”) entered into a purchase agreement (the “Purchase Agreement”) with GHS Investments, LLC (“GHS”). Under the Purchase Agreement, the Company may sell, in its discretion (subject to the terms and conditions of the Purchase Agreement) up to an aggregate of $4,000,000 of common stock to GHS.
The Company has the right, in its sole discretion, subject to the conditions and limitations in the Purchase Agreement, to direct GHS, by delivery of a purchase notice from time to time (a “Purchase Notice”) to purchase (each, a “Purchase”) over the 6-month term of the Purchase Agreement, a minimum of $10,000 and up to a maximum of $400,000 (the “Purchase Amount”) of shares of common stock (the “Purchase Shares”) for each Purchase Notice (provided that, the Purchase Amount for any Purchase will not exceed two times the average of the daily trading dollar volume of the common stock during the 10 business days preceding the purchase date). The number of Purchase Shares the Company will issue under each Purchase will be equal to 112.5% of the Purchase Amount sold under such Purchase, divided by the Purchase Price per share (as defined under the Purchase Agreement). The “Purchase Price” is defined as 90% of the lowest end-of-day volume weighted average price of the common stock for the five consecutive business days immediately preceding the purchase date, including the purchase date. The Company may not deliver more than one Purchase Notice to GHS every ten business days, except as the parties may otherwise agree.
The Purchase Agreement prohibits the Company from directing GHS to purchase any shares of common stock if those shares, when aggregated with all other shares of the Company’s common stock then beneficially owned by GHS and its affiliates, would result in GHS and its affiliates having beneficial ownership, at any single point in time, of more than 4.99% of the then total outstanding shares of the Company’s common stock.
Other than as described above, there are no trading volume requirements or restrictions under the Purchase Agreement. The Company will control the timing and amount of any sales of its common stock to GHS. The Company may at any time in its sole discretion terminate the Purchase Agreement.
If an event of default (as defined under the Purchase Agreement) (all of which are outside the control of GHS) occurs and is continuing, the Company may not deliver to GHS any Purchase Notice.
The Company will pay a finder’s fee to J.H. Darbie & Co., Inc. of 4% of the net proceeds the Company receives from sales of its common stock to GHS under the Purchase Agreement.
The shares were offered, and will be issued, pursuant to the Prospectus Supplement, dated September 21, 2020, to the Prospectus included in the Company’s Registration Statement on Form S-3 (Registration No. 333-239632) filed with the Securities and Exchange Commission on July 2, 2020.
Sichenzia Ross Ference LLP, counsel to the Company, has issued an opinion to the Company regarding the validity of the securities to be issued in the offering. A copy of the opinion is filed as Exhibit 5.1 to this Current Report on Form 8-K.
The foregoing description of the Purchase Agreement is qualified in its entirety by reference to Exhibit 10.1 attached hereto and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
|5.1||Opinion of Sichenzia Ross Ference LLP|
|10.1||Purchase Agreement (incorporated by reference to 10-K filed September 23, 2020)|
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|Date: September 23, 2020||/s/ Timothy Young|
|Chief Executive Officer|
September 23, 2020
10 E. Yanonali, Suite 36
Santa Barbara, CA 93101
Re: Common Stock registered under Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to SunHydrogen, Inc., a Nevada corporation (the “Company”), in connection with the purchase agreement dated September 21, 2020 (the “Purchase Agreement”) by and between the Company and GHS Investments, LLC (the “Investor”), relating to the sale by the Company to the Investor of up to $4,000,000 of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share.
This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the “Securities Act”).
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following:
1. Articles of Incorporation of the Company, as amended;
2. Bylaws of the Company, as amended;
3. The Purchase Agreement;
4. Registration Statement on Form S-3 (Registration No. 333-239632) as filed by the Company with the Securities and Exchange Commission (the “Commission”) on July 2, 2020 (as such registration statement became effective on July 8, 2020, the “Registration Statement”) pursuant to the Securities Act;
5. The prospectus supplement filed with the Commission on September 23, 2020, pursuant to Rule 424(b)(5) promulgated under the Securities Act (the “Prospectus Supplement”), together with the base prospectus dated July 8, 2020; and
6. Written consent of the Board of Directors of the Company approving the Purchase Agreement.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed (i) that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and (ii) the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents, and the validity and binding effect thereof on such parties.
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The opinion expressed below is limited to the federal securities laws of the United States of America and the corporate laws of the State of Nevada and we express no opinion as to the effect on the matters covered by the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that when the Shares have been delivered to and paid for by the Investor as contemplated by the Purchase Agreement, the Shares will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. We also hereby consent to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
|Very truly yours,|
/s/ Sichenzia Ross Ference LLP