UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to
Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant ☒
Filed by a Party other
than the Registrant ☐
Check the appropriate box:
| ☒ | Preliminary
Proxy Statement |
| ☐ | Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
| ☐ | Definitive
Proxy Statement |
| ☐ | Definitive
Additional Materials |
| ☐ | Soliciting
Material under §240.14a-12 |
Hyzon Motors Inc.
(Name of Registrant as Specified
In Its Charter)
(Name of Person(s) Filing Proxy
Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
| ☐ | Fee
paid previously with preliminary materials. |
| ☐ | Fee
computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11 |
PRELIMINARY PROXY STATEMENT – SUBJECT
TO COMPLETION – DATED JUNE 12, 2024
Notice
of the Special Meeting and Proxy Statement
To Our Stockholders:
The accompanying Proxy Statement is being furnished
to you in connection with the solicitation by the board of directors (the “Board”) of Hyzon Motors Inc., a Delaware corporation
(“we,” “us,” “our,” “Hyzon” or the “Company”), of proxies in the accompanying
form to be used at the Special Meeting of Stockholders of the Company.
Our
Special Meeting of Stockholders of the Company will be held virtually at 9:00 AM Eastern Time, on [●],
[●], 2024, and any adjournments or postponements thereof (the “Special Meeting”).
Questions and Answers About the Proxy Materials
and the Special Meeting
Why am I receiving these materials?
Our Board is soliciting your proxy to vote at the Special Meeting,
including at any adjournments or postponements of the Special Meeting. The Special Meeting will be held virtually. You are invited to
attend the Special Meeting via live webcast by visiting www.proxydocs.com/HYZN and to vote electronically on the proposals described in
the accompanying Proxy Statement. However, you do not need to attend the meeting to vote your shares. Instead, you may follow the instructions
below to submit your proxy by mail, Internet or telephone. Stockholders are encouraged to vote and submit proxies in advance of
the Special Meeting by mail, Internet or telephone as early as possible to avoid processing delays and ensure their votes are counted.
What items of business will be addressed at
the Special Meeting?
Two proposals will be voted on at the Special Meeting:
● The
approval of an amendment to the Second Amended and Restated Certificate of Incorporation of Hyzon Motors Inc. to increase the number of
authorized shares of Class A common stock of Hyzon Motors Inc. from 400,000,000 shares to 1,000,000,000 shares (the “Increase Authorized
Shares Proposal”); and
● The
approval of one or more adjournments of the Special Meeting, if necessary, to solicit additional proxies if there are not sufficient votes
in favor of the Increase Authorized Shares Proposal (the “Adjournment Proposal”).
Additionally, the Special Meeting will consider and
act upon any other business that may properly come before the Special Meeting or any adjournment or postponement of the Special Meeting.
Stockholders of record at the close of business on
[●], 2024 are entitled to notice of and to vote at the Special Meeting and any adjournments or postponements of the Special
Meeting.
Your vote is very important, and it is important
that your shares be represented at the Special Meeting. Whether or not you expect to attend the Special Meeting, please vote at your earliest
convenience by following the instructions you received in the mail. Please review the instructions on page 2 of the accompanying Proxy
Statement regarding your voting options.
By Order of the Board of Directors,
/s/ John Zavoli
John Zavoli
Secretary, General Counsel and Chief Legal Officer
Bolingbrook, Illinois
[●], 2024
Table of Contents
Proxy Statement
Information Concerning Voting and Solicitation
This
Proxy Statement is being furnished to you in connection with the solicitation by the board of directors (the “Board”) of
Hyzon Motors Inc., a Delaware corporation (“we,” “us,” “our,” “Hyzon” or the “Company”),
of proxies in the accompanying form to be used at the Special Meeting of Stockholders of the Company to be held virtually on [●],
[●], 2024 at 9:00 AM Eastern Time, and any adjournments or postponements
thereof (the “Special Meeting”). This Proxy Statement and the proxies solicited hereby are being first sent or delivered
to stockholders of the Company on or about [●], 2024.
Shares that are properly voted online or by telephone
or for which proxy cards are properly executed and received by the Company prior to the Special Meeting will be voted in accordance with
the instructions specified in such proxies. Each of the proposals is a “routine” matter on which brokers may vote without
instruction from beneficial owners. Therefore, we do not expect there to be any broker non-votes with respect to the proposals.
A stockholder giving the enclosed proxy has the power
to revoke it at any time before it is exercised by affirmatively electing to vote at the meeting or by delivering to John Zavoli, Secretary,
Hyzon Motors Inc., 599 South Schmidt Road, Bolingbrook, IL 60440, either an instrument of revocation or an executed proxy bearing a later
date.
Questions and Answers About the Proxy Materials
and the Special Meeting
Why am I receiving these materials?
Our Board is soliciting your proxy to vote at the Special
Meeting, including at any adjournments or postponements of the Special Meeting. The Special Meeting will be held virtually. You are invited
to attend the Special Meeting via live webcast to vote electronically on the proposals described in the accompanying Proxy Statement by
visiting www.proxydocs.com/HYZN. However, you do not need to attend the meeting to vote your shares. Instead, you may follow the instructions
below to submit your proxy by mail, Internet or telephone. Stockholders are encouraged to vote and submit proxies in advance of
the Special Meeting by mail, Internet or telephone as early as possible to avoid processing delays and ensure their votes are counted.
What items of business will be addressed at the
Special Meeting?
Two proposals will be voted on at the Special Meeting:
| ● | The approval of an amendment to the
Second Amended and Restated Certificate of Incorporation of Hyzon Motors Inc. to increase the number of authorized shares of Class A
common stock of Hyzon Motors Inc. from 400,000,000 shares to 1,000,000,000 shares (the “Increase Authorized Shares Proposal”);
and |
| ● | The approval of one or more adjournments
of the Special Meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of the Increase Authorized
Shares Proposal (the “Adjournment Proposal”). |
Additionally, the Special Meeting will consider and
act upon any other business that may properly come before the Special Meeting or any adjournment or postponement of the Special Meeting.
What are the Board’s recommendations?
Our Board recommends that you vote:
| ● | “FOR”
the Increase Authorized Shares Proposal; and |
| ● | “FOR”
the Adjournment Proposal. |
Who is entitled to vote?
Stockholders of record at the close of business on
the Record Date may vote at the Special Meeting. Each stockholder is entitled to one vote for each share of the Company’s Class
A common stock held as of the Record Date.
A list of stockholders of record entitled to vote at
the Special Meeting will be available for examination by any stockholder, for any purpose related to the Special Meeting, for ten days
prior to the Special Meeting at our offices located at 599 South Schmidt Road, Bolingbrook, IL 60440. Please contact our Secretary by
telephone at (520) 352-7578 if you wish to inspect the list of stockholders prior to the Special Meeting.
What is the difference between holding shares as
a stockholder of record and as a beneficial owner?
Stockholder of Record. If your shares are registered
directly in your name with our transfer agent, Continental Stock Transfer & Trust Company (“Continental”), you are considered,
with respect to those shares, the stockholder of record. This Proxy Statement has been sent directly to you by us.
Beneficial Owner. If your shares are held in
a brokerage account or by a bank or other nominee, you are considered the beneficial owner of shares held in street name. This Proxy Statement
has been forwarded to you by your broker, bank or nominee who is considered, with respect to those shares, the stockholder of record.
How do I vote?
You may vote using any of the following methods:
By Internet — Stockholders of record may
submit proxies by following the Internet voting instructions on their proxy materials prior to the Special Meeting. Most stockholders
who hold shares beneficially in street name may provide voting instructions by accessing the website specified on the voting instruction
form provided by their broker, bank, or nominee. Please check the voting instruction form for Internet voting availability. Please be
aware that if you vote over the Internet, you may incur costs such as Internet access charges for which you will be responsible.
By Telephone — Stockholders of record
may submit proxies by following the telephone voting instructions on their proxy materials prior to the Special Meeting. Most stockholders
who hold shares beneficially in street name may provide voting instructions by telephone by calling the number specified on the voting
instruction form provided by their broker, bank, or nominee. Please check the voting instruction form for telephone voting availability.
Please be aware that if you submit voting instructions by telephone, you may incur costs such as telephone access charges for which you
will be responsible.
By Mail — Stockholders of record may submit
paper proxies by completing, signing, and dating the proxy card and returning it in the prepaid envelope enclosed with the proxy card.
Sign your name exactly as it appears on the proxy. If you return your signed proxy but do not indicate your voting preferences, your shares
will be voted on your behalf “FOR” each of the proposals. Stockholders who hold shares beneficially in street name may provide
voting instructions by mail by completing, signing, and dating the voting instruction forms provided by their broker, bank, or other nominee.
At the Virtual Meeting — Shares held in
your name as the stockholder of record may be voted electronically at the Special Meeting by visiting www.proxydocs.com/HYZN and using
the control number included on your proxy materials. If you have already voted previously by mail, Internet or telephone, there is no
need to vote again at the Special Meeting unless you wish to revoke and change your vote. Shares held beneficially in street name may
be voted electronically at the Special Meeting only if you obtain a legal proxy from the broker, bank, or nominee that holds your shares
giving you the right to vote the shares.
Even if you plan to attend the Special Meeting
via live webcast, we recommend that you also submit your proxy or voting instructions or vote by Internet, telephone, or mail prior
to the meeting so that your vote will be counted if you later decide not to attend or vote at the meeting.
Can I change my vote or revoke my proxy?
You may change your vote or revoke your proxy at
any time prior to the vote at the Special Meeting or, if attending the Special Meeting virtually and are the record holder of your shares, by voting at the Special Meeting. If you submitted your proxy by mail, Internet or telephone, you may change your
vote or revoke your proxy with a later mail, Internet or telephone proxy. If you are a stockholder of record and submitted your
proxy by mail, you must file with the Secretary of the Company a written notice of revocation or deliver, prior to the vote at the
Special Meeting, a valid, later-dated proxy. Attendance at the Special Meeting will not have the effect of revoking a proxy unless
you give written notice of revocation to the Secretary before the proxy is exercised or you vote at the Special Meeting.
If you are a beneficial owner of shares held in street
name and you wish to change or revoke your vote, you must obtain a legal proxy through your broker, bank or nominee and present it to
Continental at least two weeks in advance of the Special Meeting. Please consult the voting instructions or contact your broker, bank
or nominee.
How are votes counted?
For Proposal 1, the Increase Authorized Shares Proposal,
you may vote “FOR,” vote “AGAINST,” or “ABSTAIN.” Abstentions are not counted as votes cast and will
have no effect on the vote on this proposal.
For Proposal 2, the Adjournment Proposal, you may vote
“FOR,” vote “AGAINST,” or “ABSTAIN.” An abstention has the same effect as a vote “AGAINST”
this proposal.
If you provide specific instructions, your shares will
be voted as you instruct. If you sign your proxy card or voting instruction form with no further instructions, your shares will be voted
in accordance with the recommendations of the Board (“FOR” the Increase Authorized Shares Proposal and “FOR” the
Adjournment Proposal).
What vote is required to approve each item?
For Proposal 1, the Increase Authorized Shares Proposal,
requires the affirmative vote of the holders of a majority of the shares of our Class A common stock casting votes in person (online during
the virtual meeting) or by proxy on such proposal at the Special Meeting. This means that this Increase Authorized Shares Proposal will
be approved if the votes cast “FOR” the proposal exceed the votes cast “AGAINST” the proposal. Abstentions are
not counted as votes cast and will have no effect on the vote on this proposal.
Proposal 2, the Adjournment Proposal, requires the
affirmative “FOR” vote of the holders of a majority of the voting power present or represented by proxy at the Special Meeting
and entitled to vote on the question.
If you hold shares beneficially in street name
and do not provide your broker or nominee with voting instructions, your shares may constitute “broker non-votes.”
Generally, broker non-votes occur on a matter when a broker or nominee does not have discretionary authority to vote on that matter
without instructions from the beneficial owner and instructions are not given. Discretionary items are proposals considered
“routine” such as each of the Increase Authorized Shares Proposal and the Adjournment Proposal, and therefore, broker
non-votes are not expected to exist with respect to these proposals. In tabulating the voting result for any particular proposal,
shares that constitute broker non-votes are not considered cast or entitled to vote on that proposal. Thus, broker non-votes will
not affect the outcome of any matter being voted on at the Special Meeting, assuming that a quorum is obtained.
What constitutes a quorum?
The holders of a majority of the voting
power of the Class A common stock issued and outstanding and entitled to vote on the Record Date, present or represented by proxy at the
Special Meeting, shall constitute a quorum. As of the close of business on the Record Date, there were [247,298,133]
shares of our Class A common stock outstanding. Both abstentions and broker non-votes are counted for the purpose of determining the presence
of a quorum.
What is “householding” and how does
it affect me?
We have adopted a procedure which has been approved
by the SEC for mailing our proxy materials called “householding”. Under this procedure, service providers who deliver our
communications to stockholders may deliver a single copy of our Proxy Statement and Notice to multiple stockholders who share the same
last name and address, unless we receive contrary instructions from any stockholder at that address. Stockholders who participate in householding
will continue to receive separate proxy cards. We have undertaken householding to reduce paper waste, printing costs and postage fees,
and we encourage you to participate.
If you prefer to receive multiple copies of our proxy
materials at the same address, additional copies will be provided to you upon request. If you are a stockholder of record, you may contact
us by writing to John Zavoli, Hyzon Motors Inc., 599 South Schmidt Road, Bolingbrook, IL 60440 or call (520) 352-7578. Eligible stockholders
of record receiving multiple copies of our proxy materials can request householding by contacting us in the same manner.
If you are a beneficial owner, you may request additional
copies of our proxy materials or you may request householding by notifying your broker, bank or other nominee.
How are proxies solicited?
Our employees, officers and directors may solicit proxies.
We will pay the cost of printing and mailing proxy materials, and will reimburse brokerage houses and other custodians, nominees and fiduciaries
for their reasonable out-of-pocket expenses for forwarding proxy material to the owners of our Class A common stock. At this time, we
have not engaged a proxy solicitor. If we do engage a proxy solicitor, we will pay the customary costs associated with such engagement.
Why are we holding a virtual Special Meeting?
We believe that the virtual meeting format will expand
stockholder access. You will not be able to attend the Special Meeting in person.
How can I attend the virtual Special Meeting?
The
Special Meeting will be a completely virtual meeting of stockholders conducted exclusively via live webcast. You will not be able to
attend the Special Meeting in person. You will be able to attend the Special Meeting via live webcast by visiting www.proxydocs.com/HYZN.
Upon entry of your control number and other required information, you will receive further instructions via email that provides you access
to the Special Meeting and to vote and submit questions during the Special Meeting. The Special Meeting will begin promptly at 9:00 a.m.,
Eastern Time, on [●], [●],
2024. We encourage you to access the virtual meeting website prior to the start time. You may begin to log into the virtual meeting platform
beginning at approximately fifteen minutes prior to the start of the Special Meeting on [●],
2024.
If you wish to submit a question during the Special
Meeting, you may log into the Special Meeting using your control number and enter and submit your question. We will answer questions that
comply with our meeting rules of conduct, subject to time constraints.
What if I have technical difficulties accessing
or participating in the virtual Special Meeting?
We will have technicians ready to assist you with technical
difficulties you may have in accessing the virtual Special Meeting, voting at the Special Meeting, or submitting questions at the Special
Meeting. After registering to attend the virtual Special Meeting, you will receive an instructional email which will provide an email
address and phone number to connect with these technicians.
What is the mailing address of our principal executive
office?
The mailing address of our principal executive office
is Hyzon Motors Inc., 599 South Schmidt Road, Bolingbrook, IL 60440.
IMPORTANT
Please promptly vote by mail, Internet or telephone,
or by following the instructions provided by your broker, bank or nominee, so that your shares can be represented at the Special Meeting.
Proposal 1 — Increase Authorized Shares
General Description of Proposal
Our Board believes that it is advisable
and in the best interests of the Company and our stockholders to amend the Second Amended and Restated Certificate of Incorporation of
the Company (the “Certificate”) to increase the number of authorized shares of Class A common stock of the Company from 400,000,000
shares to 1,000,000,000 shares. Accordingly, subject to stockholder approval (which we are hereby seeking), the Board
has approved and declared advisable a proposed amendment to the Certificate that increases the number of authorized shares of Class A
common stock from 400,000,000 shares to 1,000,000,000 shares. The form of the proposed amendment to the Certificate is attached as Annex
A to this Proxy Statement. The discussion below is qualified in its entirety by reference to the actual text of the proposed amendment
as set forth in Annex A. An increase in the number of authorized shares alone will not have a dilutive effect on the ownership percentage
of our existing Class A common stockholders; only the actual issuance of additional Class A common stock would have such an effect.
This proposal
is referred to in this Proxy Statement as the “Increase Authorized Shares Proposal” or “Proposal 1.”
Current
Capitalization
As of May 31, 2024, we were authorized to issue up to 400,000,000 shares
of Class A common stock; [247,298,133] shares of our Class A common stock were issued and outstanding, and, as described in the table below,
[101,276,798] shares of our Class A common stock were reserved for issuance as described below:
| ● | [14,769,909] shares of Class A Common Stock issuable upon the exercise of outstanding stock options, having
a weighted average exercise price of $1.20 per share; |
| | | |
| ● | [20,300,709] shares of Class A Common Stock issuable upon the settlement of outstanding restricted stock
units; |
| | | |
| ● | [5,405,617] shares of Class A Common Stock issuable upon
the settlement of outstanding performance stock units; |
| | | |
| ● | [23,250,000]
shares of Class A Common Stock issuable in aggregate as earnout shares if, prior to July
16, 2026 (a) the last reported Class A Common Stock share price for at least 20 of any 30
consecutive trading days is at least $18.00 per share, $20.00 per share or $35.00 per share,
as applicable for each tranche of Class A Common Stock to be issued, or (b) we consummate
a transaction resulting in our stockholders having the right to receive consideration implying
a value per share of at least $18.00, $20.00 or $35.00, as applicable; |
| | | |
| ● | [19,229,213]
shares of Class A Common Stock issuable upon the exercise of outstanding public and private
warrants (which includes 170,048 Ardour warrants and 31,000 Hongyun warrants outstanding)
with each warrant having an exercise price of $11.50 per share, other than the Ardour warrants
and the Hongyun warrants which have an exercise price of $2.20 and $7.75 per share, respectively;
and |
| | | |
| ● | a
total of [18,321,351] shares of our Class A Common Stock available for future grants under
our 2021 Equity Incentive Plan. |
In addition
to the authorized shares of Class A common stock, the Company is authorized to issue up to 10,000,000 shares of preferred stock, par
value $0.0001 per share, in one or more series designated by our Board, of which all of the shares
remain undesignated. Neither the number of shares of preferred stock that the Company is authorized to issue, nor the preferences, rights
or other characteristics of any preferred stock, would be changed by this Increase Authorized Shares Proposal.
Purpose
of the Amendment
Our Board is recommending the increase
in authorized shares of Class A common stock for future corporate needs. The Board believes that these
additional shares will provide the Company with needed flexibility to issue shares in the future to take advantage of market conditions
or favorable opportunities without the potential expense or delay incident to obtaining stockholder approval for a particular issuance.
The 51,425,069 shares of Class A common stock available for issuance (after taking into account the number of shares of Class A common
stock that are outstanding and reserved) as of May 31, 2024 represent approximately 12.9% of the 400,000,000 shares of Class A common
stock we are authorized to issue under the Certificate. If this Increase Authorized Shares Proposal is approved and the proposed amendment
to the Certificate is filed and becomes effective, the number of authorized shares and the number of shares available for issuance will
increase by 600,000,000 shares, resulting in 651,425,069 shares of Class A common stock available for issuance, after taking into account
the 51,425,069 shares of Class A common stock reserved for issuance as of May 31, 2024. The 651,425,069 shares of Class A common stock
that would be available for issuance represent approximately 65.1% of the 1,000,000,000 shares of Class A common stock that would be authorized
for issuance.
Shares authorized
may be issued by the Board in its discretion, subject to any further stockholder action required
in the case of any particular issuance by applicable law, by regulatory agency, or under the rules of The Nasdaq Stock Market or any
stock exchange on which our Class A common stock may then be listed. The newly authorized shares of Class A common stock would be issuable
for any proper corporate purpose, including, but not limited to, future acquisitions, investment opportunities, raising capital for commercialization
of our advanced technologies, project advancement and financing, the establishment of collaboration or other strategic agreements, capital
raising transactions utilizing equity or convertible debt securities, future at the market or other offerings of Class A common stock,
stock splits, stock dividends, issuance under current or future employee stock purchase plans or employee equity plans or for other corporate
purposes. Other than shares that may be issued under our “at-the-market” offering program, there are no immediate plans, arrangements, commitments or understandings with respect to the issuance of any of
the additional shares of Class A common stock which would be authorized by the proposed amendment to the Certificate described in this
Increase Authorized Shares Proposal.
Rights
of Additional Authorized Shares
The additional
authorized shares of Class A common stock, when issued, would be part of the existing class of Class A common stock and would have the
same rights and privileges as the shares of Class A common stock presently outstanding. Holders of shares of our Class A common stock
(solely in their capacity as holders of shares of our Class A common stock) have no preemptive rights or rights to convert their shares
of our Class A common stock into any other securities. Accordingly, should the Board elect to issue
additional shares of our Class A common stock, existing holders of shares of our Class A common stock would not have any preferential
rights to purchase the shares.
Potential
Adverse Effects of the Amendment
Future issuance
of Class A common stock or securities convertible into our Class A common stock could have a dilutive effect on the earnings per share,
book value per share, voting power and percentage interest of holdings of current stockholders. In addition, the availability of additional
shares of our Class A common stock for issuance could, under certain circumstances, discourage or make more difficult efforts to obtain
control of the Company under a possible take-over scenario. The Board is not aware of any attempt,
or contemplated attempt, to acquire control of the Company. This Increase Authorized Shares Proposal is not being presented with the
intent that it be used to prevent or discourage any acquisition attempt, but nothing would prevent the Board
from taking any appropriate actions not inconsistent with its fiduciary duties.
Effectiveness
of the Amendment
If the proposed
amendment to the Certificate described in this Increase Authorized Shares Proposal is approved by our stockholders, it will become effective
upon the filing of a Certificate of Amendment of the Certificate of the Company with the Secretary of State of the State of Delaware.
The form of such Certificate of Amendment is attached as Annex A to this Proxy Statement.
Risks
to Stockholders of Non-Approval
If the proposed
Certificate of Amendment to the Certificate described in this Increase Authorized Shares Proposal is not approved by our stockholders,
it will impede the Company’s ability to raise equity capital should the need arise. If the Company is not able to raise equity
capital, it may cause the loss of significant business opportunities, prevent the commercialization of our advanced technologies or completion
of projects and limit our ability to execute on our business plan, any of which could adversely affect our financial performance, growth
and ability to continue our operations. The Board is not aware of any attempt, or contemplated attempt,
to acquire control of the Company, and the Board does not intend or view the proposed increase in
authorized Class A common stock to be an anti-takeover measure.
Vote
Required
Approval
of the Increase Authorized Shares Proposal requires the affirmative vote of the holders of a majority of the shares of our Class A common
stock casting votes in person (online during the virtual meeting) or by proxy on such proposal at the Special Meeting. This means that
this Increase Authorized Shares Proposal will be approved if the votes cast “FOR” the proposal exceed the votes cast “AGAINST”
the proposal. This Increase Authorized Shares Proposal is a “routine” matter on which brokers may vote without instruction
from beneficial owners. Therefore, we do not expect there to be any broker non-votes with respect to this proposal, however, if there
are any broker non-votes, they will not be counted as votes cast and they will have no effect on the vote on this proposal. Abstentions
are not counted as votes cast and will have no effect on the vote on this proposal.
| |
|
| |
|
| ✓ |
The
Board Recommends a Vote “FOR” the Increase Authorized Shares Proposal. |
Proposal
2 — Adjournment Proposal
Our Board
is asking our stockholders to approve one or more adjournments of the Special Meeting, if necessary, to solicit additional proxies
if there are not sufficient votes in favor of the Increase Authorized Shares Proposal (also referred to herein as Proposal 1). This proposal
is referred to in this Proxy Statement as the “Adjournment Proposal” or “Proposal 2.” Under our Second Amended
and Restated Bylaws (the “Bylaws”), our Chairperson also has the power to adjourn the Special Meeting, whether or not a quorum
is present.
Approval
of this Adjournment Proposal requires the affirmative vote of a majority of the votes entitled to be cast on the proposal by the stockholders
who are present in person (by virtual presence online) or represented by proxy at the Special Meeting, whether or not a quorum is present.
This Adjournment Proposal is a “routine” matter on which brokers may vote without instruction from beneficial owners. Therefore,
we do not expect there to be any broker non-votes with respect to this proposal. Abstentions will have the effect of a vote “AGAINST”
this proposal.
| |
|
| |
|
| ✓ |
The
Board Recommends a Vote “FOR” the Adjournment Proposal. |
Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The
following table sets forth information known to the Company regarding the beneficial ownership of Class A common stock as of [●],
2024 by:
| ● |
each person
known to the Company to be the beneficial owner of more than 5% of outstanding Class A common stock; |
| ● |
each of the
Company’s named executive officers and directors; and |
| ● |
all executive
officers and directors of the Company as a group. |
Beneficial
ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security
if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently
exercisable or exercisable or restricted stock units that are settleable within 60 days. Class A common stock issuable upon exercise
of options and warrants currently exercisable or restricted stock units settleable within 60 days are deemed outstanding solely for purposes
of calculating the percentage of total voting power of the beneficial owner thereof.
The
beneficial ownership of Class A common stock is based on [247,298,133] shares of Class A common stock issued and outstanding as of [●],
2024. Unless otherwise indicated, the Company believes that each person named in the table below has sole voting and investment power
with respect to all shares of Class A common stock beneficially owned by them.
| Name and Address of Beneficial Owners | |
Number of
Shares of
Class A Common
Stock
Beneficially
Owned | | |
% of
Outstanding
Class A
Common
Stock | |
| Five Percent Holders (1) | |
| | |
| |
| Horizon Fuel Cell Technologies Pte. Ltd. (2) | |
| 90,353,010 | | |
| [36.5 | ]% |
| Long Focus Capital Management, LLC (3) | |
| 19,617,244 | | |
| [7.9 | ]% |
| P.N. Generations, LLP (4) | |
| 17,596,197 | | |
| [7.1 | ]% |
| Directors and Named Executive Officers | |
| | | |
| | |
| Erik Anderson (5) | |
| [744,236 | ] | |
| [* | ] |
| Dennis Edwards (6) | |
| [290,489 | ] | |
| [* | ] |
| Andrea Farace (7) | |
| [230,757 | ] | |
| [* | ] |
| Matthew Foulston (8) | |
| [230,757 | ] | |
| [* | ] |
| Viktor Meng (9) | |
| [391,416 | ] | |
| [* | ] |
| Elaine Wong (10) | |
| [894,675 | ] | |
| [* | ] |
| Parker Meeks (11) | |
| [661,702 | ] | |
| [* | ] |
| Stephen Weiland (12) | |
| [39,882 | ] | |
| [* | ] |
| Bappaditya Banerjee (13) | |
| [403,255 | ] | |
| [* | ] |
| Pat Griffin (14) | |
| [365,307 | ] | |
| [* | ] |
| Jiajia Wu (15) | |
| [139,399 | ] | |
| [* | ] |
| All Directors and Executive Officers as a group (13 persons) (16) | |
| [4,315,553 | ] | |
| [1.7 | ]% |
| (1) | The
Company is permitted to rely on the information reported by each beneficial owner in filings
with the SEC and has no reason to believe that the information is incomplete or inaccurate
or that the beneficial owner should have filed an amended report and did not. |
| (2) | As
reported in Schedule 13D/A filed on May 16, 2024, Hymas Pte. Ltd. (“Hymas”) holds
directly 33,361,668 shares and Horizon Fuel Cell Technologies Pte. Ltd. holds directly 90,353,010
shares. Hymas is 75.83% owned indirectly by Horizon, through its subsidiaries, including
Jiangsu Horizon New Energy Technologies Co. Ltd., a company incorporated under the laws of
the People’s Republic of China (“JS Horizon”), and Horizon Fuel Cell Technology
(Hong Kong) Ltd., a company incorporated under the laws of the Hong Kong Special Administrative
Region of the People’s Republic of China (“HFCT HK”). Horizon, by reason
of its ownership of 61.86% of the voting securities of JS Horizon, JS Horizon’s ownership
of 100% of the voting securities of HFCT HK, and HFCT HK’s ownership of 100% of the
voting securities of Hymas, ultimately has the right to elect or appoint the members of the
governing body of Hymas and, therefore, to direct the management and policies of Hymas. As
a result, Horizon has voting and investment power over the securities of the Company held
of record by Hymas. Such powers are vested in the Board of Directors of Horizon. Horizon
disclaims beneficial ownership of the securities reported herein, except to the extent of
its pecuniary interest therein. The address for Horizon and Hymas is Enterprise Hub, 48 Toh
Guan Road East, Postal 608586, #05-124, Singapore. The address for JS Horizon is 302-309BOT
Building A, New Environmental Materials Industrial Park, Huada Road, Jingang Town, Zhangjiagang
City, Jiangsu, China. The address for HFCT HK is 11/F., Capital Centre, 151 Gloucester Road,
Wanchai, Hong Kong. |
| (3) | Long
Focus Capital Management, LLC is the record holder of the shares. Based solely on information
contained in the Schedule 13G (Amendment No. 2) filed with the SEC on March 1, 2024, Long
Focus Capital Management, LLC, a Delaware single member limited liability company, and Long
Focus Capital Master, LTD., a Cayman Islands limited company, report shared voting and shared
dispositive power of 19,617,244 shares of Class A common stock and 14,065,829 shares of Class
A common stock, respectively. John B. Helmers, a United States citizen, reports shared voting
and shared dispositive power of 19,617,244 shares of Class A common stock. Additionally,
Condagua, LLC, a Delaware single member limited liability company, and A. Glenn Helmers,
a United States citizen, each report shared voting and shared dispositive power of 5,551,415
shares of Class A common stock. For Long Focus Capital Management, LLC, John B. Helmers,
and Long Focus Capital Master, LTD., 250,000 of the shares of Class A common stock listed
are comprised of Class A common stock that may be acquired by the reporting persons upon
the exercise of warrants. For John B. Helmers, A. Glenn Helmers, and Condagua, LLC, 350,700
of the shares of Class A common stock listed are comprised of Class A common stock that may
be acquired by the reporting persons upon the exercise of warrants. Long Focus Capital Management,
LLC, John B. Helmers, and A. Glenn Helmers directly own no shares of Class A common stock.
A. Glenn Helmers controls Condagua, LLC. Pursuant to an investment management agreement,
Long Focus Capital Management, LLC maintains investment and voting power with respect to
the shares of Class A common stock held by Long Focus Capital Master, LTD. John B. Helmers
controls Long Focus Capital Management, LLC, and maintains investment and voting power with
respect to the shares of Class A common stock held by Condagua, LLC. Such information is
as of the close of business on February 6, 2024. The business address of each of these entities,
John B. Helmers and A. Glenn Helmers is 207 Calle Del Parque, A&M Tower, 8th Floor, San
Juan, PR 00912. |
| (4) | P.N.
Generations LLP is the record holder of the shares. Based solely on information contained in the Schedule 13G filed with the SEC on
December 22, 2023, P.N. Generations LLP, a company organized under the laws of the United Kingdom, owns and has the sole voting and
dispositive power over 17,596,197 shares. The business address of P.N. Generations LLP is Unit 3, Woodgrove Farm, Fulbrook
Hill, Fulbrook, Oxfordshire, United Kingdom OX18 4BH. Viktor Meng, a director of Hyzon, is a partner of P.N. Generations
LLP. |
| (5) | WRG
DCRB Investors, LLC is the record holder of 630,947 shares reported herein. WestRiver Management,
LLC is the managing member of WRG DCRB Investors, LLC. Erik Anderson is the sole member of
WestRiver Management, LLC and has voting and investment discretion with respect to the common
stock held of record by WRG DCRB Investors, LLC. As such, each of WestRiver Management, LLC
and Erik Anderson may be deemed to have or share beneficial ownership of the Class A common
stock held directly by WRG. Each such entity or person disclaims any such beneficial ownership.
The business address of each of these entities and Erik Anderson is 920 5th Ave, Ste 3450,
Seattle, WA 98104. Additionally, Erik Anderson beneficially owns 33,864 shares of Class A
common stock, and 79,425 shares of Class A common stock issuable upon the exercise of options
within 60 days. |
| (6) | Consists
of [211,064] shares of Class A common stock, and [79,425] shares of Class A common stock issuable
upon the exercise of options within 60 days. |
| (7) | Consists of [43,662] shares of Class A common stock, and [187,095] shares of Class A common stock issuable upon the exercise of options or
settlement of restricted stock units within 60 days. |
| (8) | Consists
of [43,662] shares of Class A common stock, and [187,095] shares of Class A common stock issuable
upon the exercise of options or settlement of restricted stock units within 60 days. |
| (9) | Consists
of [294,271] shares of Class A common stock, and [97,145] shares of Class A common stock issuable
upon the exercise of options within 60 days. |
| (10) | Consists
of [815,250] shares of Class A common stock, and [79,425] shares of Class A common stock issuable
upon the exercise of options within 60 days. |
| (11) | Consists
of [239,864] shares of Class A common stock, and [421,838] shares of Class A common stock issuable
upon the settlement of restricted stock units within 60 days. |
| (12) | Consists
of [39,882] shares of Class A common stock issuable upon the settlement of restricted stock
units within 60 days. |
| (13) | Consists
of [266,891] shares of Class A common stock, and [136,364] shares of Class A common stock issuable
upon the settlement of restricted stock units within 60 days. |
| (14) |
Consists
of [365,307] shares of Class A common stock. Mr. Griffin resigned from his position of President,
North America effective April 19, 2024. |
| |
|
| (15) |
Consists
of [139,349] shares of Class A common stock held by Ms. Wu and [50] shares of Class A common
stock held by Ms. Wu’s spouse. |
| |
|
| (16) |
Consists
of [2,806,194] shares of Class A common stock, and [1,509,359] shares of Class A common stock
issuable upon the exercise of options or settlement of restricted stock units within 60 days,
and [300] shares of Class A common stock held indirectly through certain officers’ spouses. |
Stockholder
Nominees and Proposals for the 2024 Annual Meeting
Our
2024 Annual Meeting of Stockholders is currently scheduled to be held on August 21, 2024.
To
be considered for inclusion in the Company’s proxy statement for the 2024 Annual Meeting of stockholders, stockholder proposals
must be received by our Secretary no later than April 23, 2024. Proposals should be sent to our Secretary at Hyzon Motors Inc., 599 S.
Schmidt Road, Bolingbrook, IL 60440. These proposals also must comply with the stockholder proxy proposal submission rules of the SEC
under Rule 14a-8 of the Exchange Act. Proposals we receive after that date will not be included in the proxy statement. We urge stockholders
to submit proposals by Certified Mail — Return Receipt Requested. If we change the date of our 2024 Annual Meeting by more than
thirty days from the date of the previous year’s annual meeting, the deadline shall be a reasonable time before we begin to print
and send our proxy materials. Stockholders interested in submitting such a proposal are advised to contact knowledgeable counsel with
regard to the detailed requirements of the applicable securities laws and our Bylaws. The submission of a stockholder proposal does not
guarantee that it will be included in our proxy statement.
Our
Bylaws also establish advance notice procedures for stockholders who wish to nominate an individual for election as a director or to
present a proposal at the 2024 Annual Meeting but do not intend for the nomination or the proposal to be included in our proxy statement.
A director nomination or stockholder proposal not included in the proxy statement for the 2024 Annual Meeting will not be eligible for
presentation at the meeting unless the stockholder gives timely notice of the nomination or proposal in writing to our Secretary at our
principal executive offices and otherwise complies with the provisions of our Bylaws. In addition, stockholders who intend to solicit
proxies in support of director nominees, other than our nominees, must provide notice in compliance with the universal proxy rules that
sets forth the information required by Rule 14a-19 of the Exchange Act. To be timely, our Bylaws provide that we must have received the
stockholder’s notice not more than 120 days nor less than 90 days prior to the first anniversary of the date the proxy statement
was provided to the stockholders in connection with preceding year’s annual meeting of stockholders. However, if we have not held
an annual meeting in the previous year or the date of the annual meeting is called for a date that is more than 30 days before or delayed
by more than 60 days after the first anniversary date of the preceding year’s annual meeting, we must have received the stockholder’s
notice not earlier than the 120th day prior to the date of the scheduled annual meeting and not later than the close of business on the
later of the 90th day prior to the date of the scheduled annual meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made. For the 2024 Annual Meeting of stockholders, notice must be received between April 23, 2024
and May 23, 2024. Proposals should be sent to our Secretary at Hyzon Motors Inc., 599 S. Schmidt Road, Bolingbrook, IL 60440. An adjournment
or postponement of an annual meeting will not commence a new time period or extend any time period for the giving of the stockholder’s
notice described above. The stockholder’s notice must set forth, as to each proposed matter, the information required by our Bylaws.
The presiding officer of the meeting may refuse to acknowledge any matter not made in compliance with the foregoing procedure.
Our
Bylaws also establish advance notice procedures for stockholders who wish to submit a “proxy access” nomination for inclusion
in our proxy statement. A “proxy access” nomination will not be eligible for inclusion in the proxy statement unless the
stockholder gives timely notice of the nomination in writing to our Secretary at our principal executive offices and otherwise complies
with the provisions of our Bylaws. To be timely, our Bylaws provide that we must have received the stockholder’s notice not more
than 150 days nor less than 120 days prior to the first anniversary of the preceding year’s annual meeting. However, if we have
not held an annual meeting in the previous year or the date of the annual meeting is called for a date that is more than 30 days before
or delayed by more than 60 days after the first anniversary date of the preceding year’s annual meeting, we must have received
the stockholder’s notice not earlier than the 150th day prior to the date of the scheduled annual meeting and not later than the
close of business on the later of the 120th day prior to the date of the scheduled annual meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made. For the 2024 Annual Meeting of stockholders, notice must be received
between March 24, 2024 and April 23, 2024. Proposals should be sent to our Secretary at Hyzon Motors Inc., 599 S. Schmidt Road, Bolingbrook,
IL 60440. An adjournment or postponement of an annual meeting will not commence a new time period or extend any time period for the giving
of the stockholder’s notice described above. The stockholder’s notice must set forth, as to each proposed matter, the information
required by our Bylaws. The presiding officer of the meeting may refuse to acknowledge any matter not made in compliance with the foregoing
procedure.
Other
Matters
As
of the time this proxy statement was mailed, our Board does not know of any proposals or business items that will be presented for consideration
at the Special Meeting, other than those set forth herein. If any other business is properly brought before the Special Meeting, the
proxy holders will vote in accordance with their judgment unless you direct them otherwise. Whether or not you plan to attend the Special
Meeting, we urge you to vote by mail, Internet or telephone.
Note
Regarding Forward-Looking Statements
Except
for the historical information set forth herein, the matters set forth in this Proxy Statement contain predictions, estimates and other
forward-looking statements, including without limitation statements regarding our business plans and our mission including capital and
financing transactions.
These
forward-looking statements are based on our current expectations and are subject to risks and uncertainties that may cause actual results
to differ materially, including: our ability to execute our business model, including market acceptance of our planned products and services;
our ability to convert non-binding memoranda of understanding or vehicle trial agreements into binding orders or sales (including because
of the current or prospective financial resources of the counterparties to Hyzon’s non-binding memoranda of understanding and letters
of intent); our ability to identify additional potential customers and convert them to paying customers; changes in applicable laws or
regulations; risks associated with the outcome of any legal, regulatory or judicial proceedings; the effect of pandemics on our business;
our ability to raise capital; our ability to compete; the success of our business collaborations; regulatory developments in the United
States and foreign countries; the possibility that we may be adversely affected by other economic, business, and/or competitive factors;
our history of operating losses; and other risks detailed from time to time in our reports filed with the Securities and Exchange Commission,
including our Annual Report on Form 10-K for the year ended December 31, 2023. We disclaim any intent or obligation to update these forward-looking
statements.
ANNEX
A
CERTIFICATE
OF AMENDMENT
OF
SECOND
AMENDED AND RESTATED CERTIFICATE OF INCORPoRATION
OF
HYZON
MOTORS INC.
It
is hereby certified that:
1.
The name of the corporation is Hyzon Motors Inc. (the “Corporation”).
2.
The Board of Directors of the Corporation has duly adopted resolutions setting forth a proposed amendment of the Second Amended and Restated
Certificate of Incorporation of the Corporation declaring said amendment to be advisable and calling for the stockholders of the Corporation
to consider such amendment at a special meeting of the stockholders of the Corporation, which amendment would amend and restate Section
4.1 of Article Fourth of the Second Amended and Restated Certificate of Incorporation of the Corporation to read as follows:
“Section
4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock, each with a par value of $0.0001
per share, which the Corporation is authorized to issue is 1,010,000,000 shares, consisting of (a) 1,000,000,000 shares of Class A common
stock (the “Common Stock”) and (b) 10,000,000 shares of preferred stock (the “Preferred
Stock”).”
3.
Pursuant to a resolution of the Board of Directors, a special meeting of the stockholders of the Corporation was duly called and held
upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware (the “DGCL”), at
which meeting the necessary number of shares as required by the DGCL were voted in favor of the amendment.
4.
The amendment of the Certificate of Incorporation of the Corporation herein certified has been duly adopted in accordance with the provisions
of Section 242 of the DGCL and shall become effective upon the filing of this Certificate of Amendment with the Secretary of State of
the State of Delaware.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by the undersigned officer this ___ day of ___________,
20__.
| |
By: |
|
| |
Name: |
Stephen Weiland |
| |
Title: |
Chief
Financial Officer |
Hyzon Motors (NASDAQ:HYZNW)
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Hyzon Motors (NASDAQ:HYZNW)
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