Item 1.01. Entry Into a Material Definitive Agreement.
On June 6, 2024, Hyzon Motors Inc. (“Hyzon” or the “Company”) entered into Sales Agreement (the “Sales Agreement”) with Roth Capital Partners, LLC (“Roth”) and BTIG, LLC (“BTIG” and together with Roth, the “Sales Agents”). Pursuant to the Sales Agreement, the Sales Agents will act as the Company’s agents with respect to an offering and sale, at any time and from time to time, of the Company’s Class A common stock, par value $0.0001 per share (the “Shares”). The Company has authorized the sale, at its discretion, of Shares in an aggregate offering amount up to $50,000,000 under the Sales Agreement. Sales of the Shares, if any, will be made in “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). The Sales Agents will use commercially reasonable efforts consistent with normal trading and sales practices.
The Shares will be sold and issued pursuant to the Company’s Registration Statement on Form S-3 once declared effective by the Securities and Exchange Commission, and the related prospectus and prospectus supplement. We are not obligated to make any sales of Shares under the Sales Agreement and no assurance can be given that we will sell any Shares under the Sales Agreement, or, if we do, as to the price or amount of Shares that we will sell, or the dates on which any such sales will take place.
The Company or the Sales Agents, under certain circumstances and upon notice to the other, may suspend the offering of the Shares under the Sales Agreement. The offering of the Shares pursuant to the Sales Agreement will terminate upon the sale of Shares in an aggregate offering amount equal to $50,000,000, or sooner if either the Company or the Sales Agents terminate the Sales Agreement.
The Company will pay the Sales Agents a cash commission in an amount up to 3.0% of the gross proceeds from each sale of Shares sold pursuant to the Sales Agreement, and will reimburse the Sales Agents for the documented fees and costs of its legal counsel reasonably incurred in connection with entering into the transactions contemplated by the Sales Agreement in an amount not to exceed $75,000 in the aggregate, in addition to quarterly disbursements of counsel to the Sales Agents up to $10,000 per calendar quarter.
The Company made certain customary representations, warranties and covenants in the Sales Agreement concerning the Company and its subsidiaries and the registration statement, prospectus, prospectus supplement and other documents and filings relating to the offering of the Shares. In addition, the Company has agreed to indemnify the Sales Agents against certain liabilities, including liabilities under the Securities Act.
The foregoing description of the Sales Agreement is qualified in its entirety by reference to the Sales Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This Current Report on Form 8-K, including the exhibits filed herewith, shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation or sale of the securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.